The RIGHTS OF The UNBORN

The Constitutional Challenge to Roe v. Wade
by Fr. Clifford Stevens

PREFACE

The constitutional issues raised by Roe v. Wade have never had, a public airing and the public debate on the subject has turned on philosophical rather than legal issues. This study attempts to bring into focus some of the constitutional issues involved, but by no means exhausts them. it is merely an overview of a totally new development in constitutional law, a development that could be labeled embryonic law.

That development was opened by the Roe v. Wade decision, as the issue of civil rights was opened by Plessy v. Ferguson, workers' rights by Lochner v. New York, and children's rights by Hammer v. Dagenhart.

The question now before the judiciary is the rights of the unborn, and this study links the question of the unborn with major constitutional issues of the past, setting the stage for the emergence of Embryonic Law. I am convinced that any future public discussion of the subject must face squarely the constitutional questions. A few of these questions are highlighted in this book.

 

PROLOGUE.

I - The Basis for a Legal Challenge.

II - The Constitutional Principle.

III - Precedents in Constitutional History.

IV - Historic Supreme Court Reversals.

V - The Judicial Process: Litigation.

VI - The Judicial Process: Principles.

VII - The Judicial Process: Precedent: stare decisis.

VIII - The Judicial Process: Facts.

IX - The Judicial Process: Rights.

X - The New Juridic Vacuum: Unborn Life.

XI - The New Juridic Development: Embryonic Law.

XII - Sources for a Constitutional Challenge.

POSTSCRIPT.

APPENDIX: Stare Decisis: A Talk by Justice Douglas

 

PROLOGUE

IN HIS HISTORY OF THE SUPREME COURT, Leo Pfeffer entitles one of his chapters, "The Flowering of Court-Protected Capitalism", and this well describes the constitutional crisis of the late 19th and early 20th century, when industrial barons and corporate magnates fought in the courts to protect the expansion of their industrial and financial empires from government regulation, and opposed the efforts of workers to protect their own interests. Every attempt on the part of state and local governments to protect the rights and health of workers was defeated when the cases reached the Supreme Court.

In the eyes of the Court, following a tradition going back to John Marshall, the rights of property were absolute and the contractual rights of employers, inviolable, and every attempt to further the rights of workers was declared unconstitutional, under the Due Process clause of the 14th Amendment. The constitutional reasoning of the Court seemed inflexible and as case after case mounted up, the principle of stare decisis was invoked and it was clear that the Court would invalidate any law regulating the growth of business. What was happening juridically is that Court was using the due process clause as a juridical instrument for the protection of industry and business monopolies.

Then something quite miraculous happened. Out of the dissents of Justice Harlan and Justice Holmes, the judicial process began to take on a new direction, especially after two classic cases in which the dissents, in their logic and cogency, overpowered the majority opinion of the Court: Plessy v.Ferguson and Lochner v. New York. Plessy was famous for the dissent of Justice John Marshall Harlan and Lochner for the dissent of Justice Oliver Wendell Holmes.

Constitutional law had entered a new era. That new era was highlighted by the landmark appearance of Louis Brandeis at the court, in a case that marked the turning point in modern constitutional history, Muller v. Oregon, in which empirical facts were given equal standing with precedent in the judicial process. This case marked the turn from property rights to personal rights in the history of the Court, a turn that would culminate in the social legislation of the 30's and 40's, and in Brown v. Board of Education in 1954, which overturned the major Supreme Court precedent of the old era.

In both cases, Plessy v. Ferguson and Lochner v. New York, the law had not kept up with history, and new human and social developments demanded the growth of the law into new historical situations. The need was for growth, not application of old laws and old precedents, and the creation of new laws and new precedents that would embody the new needs and the new social conditions. It was the judicial genius of Harlan and Holmes that first recognized this and it was Louis Brandeis and Benjamin Cardozo, one a lawyer and one a judge, who pioneered by their thinking and their labors the new constitutional development. Out of their thinking and their labors a new era of constitutional law was born.

With Roe v. Wade, constitutional law is on the threshold of a new development, a development that could have been foreseen as the protection of the law was extended from the rights of African-Americans to the rights of Native-Americans, from the rights of workers to the rights of women, from the rights of adults to the rights of children. Roe v. wade marked the entrance of the unborn into the legal arena, and, like Plessy v. Ferguson and Lochner v. New York, there are no precedents to draw upon in deciding the issue. New precedents have to be created.

This paper lays down the basis for a constitutional challenge to Roe v. Wade, since it is only by constitutional challenge that new principles emerge from the Constitution to face new historical situations, creating new precedents. The conviction that stare decisis determines Supreme Court decisions is only partially true: it is true until new principles emerge by litigation, principles brought out by new historical situations never faced before. Roe v. wade will never be overturned by legal reasoning alone, however cogent, but only by bringing before the Court new cases in which the question of the unborn is examined in its full empirical reality and the medical and surgical methods aimed at the destruction of unborn life are revealed in their full destructive intent.

A legal victory over abortion will not be achieved by one or two cases, but only by the persistent recourse to the courts, as abortion practices are challenged with new data which demonstrate the violation of constitutional rights. What will gradually emerge as these cases are adjudicated are the facts and the principles of a new juridic development, embryonic law.

[Some hold] that a constitutional challenge to Roe v. Wade [is] "not tenable" and that a constitutional assault on abortion is "ill-advised at present", and that any suggestion to the contrary [is] unrealistic and uninformed.

I am in total disagreement with [such] convictions, [which] I consider arbitrary and based on several false assumptions

Those assumptions I try to dispel in this paper, not for the sake of argument or to bring new controversy into this critical issue, but to counteract the negative climate that [such] views are bound to create. It is a climate, it seems to me, that is the glaring weakness in the pro-life community. I consider them a complete abandonment of any effort to overturn Roe v. Wade and the admission that there is no constitutional issue involved in the abortion question. This paper highlights some of the constitutional issues involved, as well as other "avenues" for the legal solution of this controversial and critical national issue.

[Some] believe that Roe v. Wade is unique in constitutional history and too formidable in its legal consequences to approach with anything but extreme caution. It is not, and has serious constitutional and procedural weaknesses that every constitutional lawyer recognizes. The great mistake is to take its legal language too seriously, as if Supreme Court decisions had not been overturned, and to forget that for the overturning of any previous decision, only five members have to be won over. The dissenting opinions of Justice Rehnquist and Justice White provide ample material for judicial reflection and Justice Douglas's concurring opinion is a rambling commentary on important issues that could well work against the majority opinion itself.

What have to be studied are the Supreme Court cases overturning previous decisions of the Court, especially Muller v. Oregon, Bunting v. Oregon, Unit. St. v. Darby and Brown v. Board of Education. There are others of lesser importance, all demonstrating the kind of legal reasoning that impressed the court and the facts that contribute to a reversal.

But even more important is a knowledge of the judicial process, as described by Justice Benjamin Cardozo in his three classic works and the legal engineering that Louis Brandeis brought to that process. There have been more difficult cases overturned by the Court, Plessy v. Ferguson and Lochner v. New York in particular, and they were overturned because those who argued them knew the decisions were wrong, and did the legal legwork that was necessary to defeat them.

If … reservations about a legal challenge to Roe v. Wade are taken seriously, nothing will be done until the success of a litigation seems assured, forgetting that successful litigation is created by hard work and continual recourse to the courts, until the constitutional weaknesses of a decision are revealed, and the legal basis of the previous decision shown to be false. To consider Roe v. wade unassailable is to admit defeat from the start. It is a wrong decision and can be demonstrated to be so.

In a matter of such great consequence, the difficulties of securing the rights of the unborn have to be faced as Abraham Lincoln faced the passing of the Dred Scott Decision, convinced of its unconstitutionality and laying the groundwork for reversing it. His comments are worth repeating:

"I think the authors of that notable instrument (the Declaration of Independence) intended to include all men, but they did not intend to declare all men equal in all respects.... They defined, with tolerable distinctness, in what respects they did consider all men created equal - equal in certain unalienable rights, among which are life, liberty and the pursuit of happiness. This they said, and this they meant.....

"They meant to set up a standard maxim for a free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence ......."

The basic principle he enunciated and defended with unassailable logic was that the doctrine of human rights proclaimed by the Declaration of Independence and promulgated by the Bill of Rights admits of no exception: not Blacks, not Indians, not Jews not Catholics, not women, not children, not the unborn qui in utero est – the Bill of Rights was for "all coming generations without any exception whatever."

This basic principle has to be enunciated again and defended with the same unassailable logic, extending that principle now to include the unborn.

Lincoln knew that the Court and the politicians were opposed to him and that the climate of the country was divided and uncertain. Yet he stated boldly: "We think the Dred Scott Decision is erroneous. We know the Court that made it has often overruled its own decision, and we shall do what we can to have it overrule this."

I believe our determination should be no less and this paper lays down some of the steps by which this might be accomplished.

 

1 - THE BASIS FOR A LEGAL CHALLENGE

THE BASIS FOR A LEGAL CHALLENGE to Roe v. Wade is that, in the American system of justice, national disputes are resolved only by litigation, by action in the courts, and the only way to challenge a decision of the Court is by litigation.

A Supreme Court decision is based upon a dispute, a dispute between two parties, and there cannot be a final resolution if that dispute is not raised in the courts. The whole nature of the judicial process is the settling of disputes and to avoid litigation in the issue of abortion is to opt out of the judicial process and bring the dispute to a legal standstill. Not to engage in litigation in the issue of abortion means that only one side of the dispute will be heard, conceding a legal victory to advocates of abortion.

The basis for a legal challenge, then, is the Constitution of the United States, the principles of Common Law and precedents in constitutional history and in constitutional law. Principles in the Constitution which bear upon specific issues emerge only by litigation, as new situations arise to which the law must be applied and new disputes arise demanding resolution by the judiciary. It is by litigation that new developments in law take place and that new rights are given the protection of the law.

The abortion issue is a national dispute, a dispute between those who oppose abortion and the members of the NARAL, the National Organization of Women and Planned Parenthood. At this point in adjudicating the dispute, only one side of the issue has really been heard, the views of those who support abortion. The only history of the question that has been examined, or even aired, is the history of the abortion laws, with an erroneous conclusion drawn from those laws.

The constitutional issue in the abortion question, the termination of unborn life, was not faced by the Court, in fact, the Court refused to consider that issue, much as the Dred Scott Decision refused to face the question of the manner in which Black Africans were brought to the United States or the inhuman manner of their servitude. This was because Roe v. Wade was presented, on the basis of the briefs, as a case of law facilitating a basic constitutional right, rather than constituting one. Those arguing the case made sure that the question of unborn life and the manner of its destruction would never be faced by the Court. This is exactly the same way that Dred Scott, Plessy v. Ferguson and Lochner v. New York were decided...all of which were later overturned by the Court.

In preparing a legal challenge to Roe v. Wade, what must be carefully studied are those classic Supreme Court cases that were overturned by the Court, the manner in which they were presented to the Court, and the legal arguments that were used in that presentation. The classic cases are four: Dred Scott, the constitutional weaknesses of which are found in the speeches of Abraham Lincoln; Plessy v. Ferguson, legalizing segregation, overturned by Brown v. Board of Education; Lochner v. New York, concerned with workers' rights, overturned by Muller v. Oregon and Bunting v. Oregon: and Hammer v. Dagenhart, institutionalizing child labor, overturned by United States v. Darby.

There are many lesser cases that have been reversed, most of them concerned with minor issues, but some of them of critical importance at the time. All have lessons to be learned about how the Court reasons and how the process of litigation before the Court works. The speeches and written briefs of those who appeared frequently before the Court, like Daniel Webster and John W. Davis, are models to be studied, as well as of those who have been key figures in reversing a particular decision, like Louis Brandeis and Thurgood Marshall.

Important also in understanding how the Court reverses its positions, are the dissenting opinions of Justices like John Marshall Harlan the Elder, Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo, as well as the dissenting and concurring opinions in what have become known as the "Abortion Cases", Roe, Casey, etc. It is the dissenting opinions that often lay down the principles for reversing a decision and indicate new directions that the Court will be taking in constitutional questions.

A legal challenge is also based on the fact that it is by legal challenge that law develops, that new dimensions in law itself are opened up, and new applications made of ancient principles. By legal challenges, the law faces new situations, demanding in the judges a careful application of precedents and principles, demanding also a second look and a second think at what precedents are pertinent and what principles apply. But far more critical, it also requires the creation of new precedents, to face new situations and new needs, and, as legal history shows, this process is sometimes arrested by personal bias, intellectual laziness or a total inability to recognize something unprecedented.

"Some judges'...notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule. But, of course, no system of living law can be evolved by such a process, and no judge of a high court, worthy of his office, views the function of his place so narrowly. If that were all there was to our calling, there would be little of intellectual interest about it. The man who had the best card index of cases would also be the wisest judge. It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins." (Cardozo)

In Roe v. Wade, the colors simply do not match, there was scarcely any appeal to precedent and the precedent chosen, Griswold v. Connecticut, had nothing to do with the unborn. Its only link with the abortion issue was that both cases had some relationship to sexual relations and reproductive matters. The hard work of linking the abortion question with its constitutional precedents was simply not done, and the views of the NARAL, with its cursory examination of abortion laws, was the closest thing to research in formulating the majority opinion. That work of research is still to be done, and with a legal challenge, the results of that research can inform the Court of other precedents and other principles and other facts that were not considered in the first place.

Like slavery, segregation and child labor, the practice of abortion has crept under the tent of the law due to social, economic and political pressures, not on its own merits. It is clear from the history of Bartolomé de Las Casas, in his fight against the Spanish colonial system of encomienda and the consequent genocide of the Indian peoples, that inhuman and barbaric practices can become part of a culture that is otherwise civilized and humane, and that such practices can even become supported by positive law. One has only to read the defense of the encomienda system by Juan Ginés de Sepúlveda, Las Casas' great antagonist, before the Council of the Indies in 1551, to realize the lengths that the legal mind will go to defend barbaric practices.

The remarks of a great English judge, Lord Mansfield, on the subject of slavery, hold true as well for the practice of abortion. A Black African had been kidnapped off the coast of Africa and sold in Virginia as a slave. He was brought to England by his "master" and made a bolt for freedom. When he was re-captured, the case was brought before Lord Mansfield, who ordered his release with these words:

"The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserved its force long after the reasons, occasions, and time itself from whence it was created, are erased from memory. it is so odious that nothing can be suffered to support it, but positive law I care not for the supposed dicta of judges, however eminent, if they be contrary to all principle....at all events, they are to be disregarded."

It is only when abortion is linked with its legal precedents that its true supports are seen: the mere will of those who want it for their own advantage, citing, like the advocates of slavery, not legal principles or anything resembling a convincing rationale, but only reasons of personal advantage and self-interest. Very few are as honest as John Rutledge, who blocked any attempt on the part of the Constitutional Convention in Philadelphia from facing squarely the issue of slavery. Religion and humanity, he said, had nothing to do with the question. "Interest alone is the governing principle of nations." The fate of the Black Man under American law was sealed at that moment. The arguments of the proponents of abortion have a similar ring about them.

Those who point to Roe v. Wade as the law of the land need to be reminded by judges of the extreme fragility of positive law, backed only by the thin thread of a single legal decision. They also need to be reminded of the uncertainties of the process by which such legal decisions are made and the need for straightening out that process. Justice Cardozo spoke of these uncertainties more than seventy years ago and his observations are still timely:

"Our law stands indicted for uncertainty, and the names of weighty witnesses are endorsed upon the bill. If we seek causes, they are many.... There (is) the lack of agreement on fundamental principles of common law; lack of precision in the use of legal terms; conflicting and badly drawn statutory provisions... the great volume of recorded decisions.... ignorance of judges and lawyers; and the number and nature of novel legal decisions."

The idea that Roe v. Wade constitutes a clear legal decision is contradicted by the national debate on abortion and the fact that the dispute on the matter has not ended. The proper forum for that dispute is the courts, where all arguments can be heard and the great weight of history can be consulted. When the arguments are laid out end by end, and the empirical facts of the abortion question are fairly heard in a court of law, there is no doubt about where the weight of the evidence will point. It is for that very reason that the advocates of abortion are doing all in their power to strengthen the decision reached in Roe v. Wade and prevent any attempt to look the question of abortion squarely in the face. All the more reason to bring the question again and again to the courts, where it can be examined in all its excruciating details and where a further judgment can be made on its constitutional validity. That is what the judicial process is really all about.

 

2 - THE CONSTITUTIONAL PRINCIPLE

1. IN A SOCIETY WITHOUT LAW, the strong destroy the weak, and the basic constitutional principle at work in the American judiciary is that there must be effective checks in the law to protect the weak and deter those who would use power unlawfully only for their own advantage. It makes no difference if the power is political, military, economic or brute physical force, the result is always the same: the weak are at the mercy of the strong, the strong using the law to cover their own lawlessness and using the cover of the law to conceal their destructive intent.

The question of abortion is no different from issues that have divided the country in the past: slavery, segregation, child labor, the condition of workers. Those holding power, intent on their own private interests, commit violent acts under cover of property rights, contractual rights, states' rights, or the right of personal autonomy. In every case, it is the strong demanding power over the weak, and it is this demand and this claim that brought about the social and juridic revolution at the turn of the century, when Louis Brandeis realized that economic power had become the new tyranny and that the economically weak had to be protected from the economically strong.

Tyranny always flourishes under cover of the law, and the law in this case is a three-pronged constitutional claim: the physician's right to medical practice, the woman's right to privacy, and the woman's right of dominion over her own body. All three are valid claims: there is a physician's right to practice medicine, there is a right to privacy protected by the Constitution, and there is a right of dominion that every human being has over his or her person. What has to be shown by litigation is that, in this case, these claims of legality are mere legal fictions, legal covers for something unlawful and malicious: the surgical destruction of unborn life under the shield of "standard medical practice".

What is the root constitutional principle and the basic constitutional right imbedded in the issue of abortion and how can it reveal itself in the light of the intense controversy surrounding it? We have Dred Scott, Plessy v. Ferguson, Lochner v. New York and Hammer v. Dagenhart to remind us that the judicial process can be flawed, with great harm to countless human beings and tragic social consequences. Has Roe v. Wade isolated and identified the constitutional right involved, the Right to Privacy, as the majority opinion affirmed?

The Supreme Court cases that parallel Roe v. Wade are not those concerned with privacy, but rather those that were concerned with providing a legal cover for acts of violence, and the closest parallels in time are Brown v. Board of Education, which outlawed segregation, U.S. v. Darby which ended child labor, and Muller v. Oregon, which banned the exploitation of workers by industry.

With Roe v. Wade, the time was ripe for the bringing to close the unlawful use of power, political, military, economic, physical, as the cover for other acts, that the law had always considered inhuman and barbaric. Instead, a legal cover was provided for yet another act of violence, joining slavery, segregation, child labor and exploitation of workers in the long list of violent acts given legal sanction by the court.

The history of the abortion question is the history of acts of violence, done under cover of law, aimed at the oppression, exploitation or extermination of those that the law does not recognize as persons under the law, or as having rights under the law. That is what gives these cases their distinct character and that is what makes them even more telling as precedents of the abortion issue.

One constitutional lawyer, in a recent book took note of this and reminded us of the most obvious example in our legal history: "One popular justification for the African slave trade was that the black Africans were subhuman and even nonhuman. This view made it quite simple for many of the Founders of the Republic to maintain what today is seen as racist hypocrisy - to affirm in the Declaration of Independence that all men are created equal, while at the same time keeping in thrall substantial numbers of 'kidnapped Africans'."

Roe v. Wade has a distinguished ancestry - but a bloody past. It is the story of oppression, genocide, Black slavery, segregation, child labor. Abortion is simply one more form of violence done in the name of someone else's right under the law to do violence. The fact that the victim is the unborn and has no status under the law makes the case no different from its predecessors. The fact that the doers of violence are women and doctors does not change the character of the violence. Slavery was the work of respectable families and distinguished landowners and the most vocal advocate of segregation were a distinguished statesman and jurist. Those who supported child labor were successful businessmen and fathers of families and even members of the clergy.

Roger Brooke Taney was a Catholic and a brilliant Chief Justice of the Supreme Court, who handed down what are considered landmark decisions, contributing to the development of constitutional law. He had freed his own slaves, was a devoted father and husband, and was considered a model judge. Yet he was blind to the evil of slavery and could actually make these statements in handing down the Dred Scot Decision:

"The question is simply this: can a Negro, whose ancestors were imported to this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? Neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were acknowledged as part of the people, nor intended to be included in the general words of the Declaration of Independence.....They had for more than a century been regarded as beings of an inferior order, and altogether unfit to associate with the White race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect… The Negro might justly and lawfully be reduced to slavery… He was bought and sold and treated as an ordinary article of merchandise and traffic."

Slavery was a moral monstrosity and a national crime, but there were countless persons, decent and upstanding in every other respect, who held to it for their own advantage. But it was in essence violence, the violence of one person towards the person of another, and it is in the progression of child labor, segregation, slavery that the legal ancestry of abortion is to be found. The constitutional principles that emerge from that ancestry point unerringly to what is at issue in the abortion question and that is seen in startling cogency when that ancestry is examined. It is the work of litigation to trace that ancestry and to reveal the pattern in the precedents linking it up with the issue of abortion. The historical roots of the abortion question are found in those precedents, as well as the "basic juridical conceptions which are the postulates of legal reasoning, and farther back, the habits of life, the institutions of society, in which those conceptions had their origin."

The root constitutional principle at stake in the abortion issue is the unborn's right of dominion over its own physical being, violated by the act of abortion, and its negative counterpart, the right to immunity from violence, and this is demonstrated, first of all, by linking it with its precedents.

2. The Methodological Flaw in Roe v. wade.

The legal basis for a constitutional challenge to Roe v. wade hinges upon the fact that Roe v. Wade did not face and did not decide upon the constitutionality of abortion. What it faced and decided upon was the constitutionality of access to abortion, under the legal fiction that abortion laws in the past were intended to protect a woman from a surgical operation that was unsafe and life-threatening.

What was considered was the surgical procedure itself, as safe or unsafe to the health of a woman, with the conclusion that, with the advance of medical science and the improvement of surgical techniques, all danger to a woman's health had been removed. Using the common legal principal cessante ratione legis cessat et ipsa lex, when the reason for a law no longer exists, the law itself ceases to exist, Roe v. wade declared all abortion laws obsolete and access to abortion a constitutional right, protected by the Fourth Amendment.

Abortion as a constitutional issue was not even considered. What was considered was abortion as a medical matter, with the conclusion that it was and remains merely a medical matter, a private matter between a woman and her doctor.

This was the hidden agenda behind the majority opinion written by Justice Blackmun and explains the twists and turns of the legal reasoning that went into that opinion. The guiding principle was one that Justice Blackmun had received from New York Law Professor, Cyril Means, a leading member of the NARAL, the National Association for the Repeal of the Abortion Laws. The principle was part of a complexus of opinions that Professor Means had come to in his study of the legal history of abortion. One of his conclusions was that the abortion laws of the past were chiefly, if not exclusively, framed to protect the health of women, since abortion in the past was a rather dangerous and sometimes fatal surgical operation for women. With the advancement of medicine, he concluded, the laws had become outmoded and he cited the legal principle quoted above as his basis for the repeal of the abortion laws.

Justice Blackmun accepted both the reasoning and the principal of Professor Means and searched as well for a constitutional principle to support access to abortion, once the laws were repealed. He found it in the Right to Privacy, a ready-made principle that had resolved another landmark case, Griswold v. Connecticut, eight years before.

What the legal briefs of the NARAL failed to point out was the real intent of the abortion laws: they were fashioned, not primarily to protect a woman from unsafe and life-threatening surgery, although this was certainly a major concern, but to preserve the life of the unborn. And this was because those laws recognized the unborn child, not merely as a potential human being, but as an actual human subject. Potentially, the unborn child was a human being in a developing stage, but actually the unborn child was a full-blown human subject, and as such, the subject of rights and the object of law.

These are some of the facts ignored by Roe v. wade, under the legal fiction that abortion laws were solely intended to protect a woman from unsafe surgery. Their primary intent was to protect the unborn child from an inhuman and barbaric assault on its bodily integrity, in the name of accepted medical practice, the Right to Privacy, or the Right of Dominion which a woman has over her own body. The abortion laws, like all laws embodying a constitutional right, are based on the inviolability of the human person and it is on this level that the legal debate has to take place. What is involved is not safe or unsafe surgery, but human rights in the embryonic moment, of human existence. In every issue of constitutional law, it is the inviolability of the human person that is at stake.

The only way to justify legally the violation of a human right is to negate by a legal fiction the human status of the victim. This tactic is as old as constitutional law itself, and always marks the emergence of an unrecognized constitutional right from the bedrock of the Constitution and the beginning of massive litigation to clarify the issue.

Even the proponents of abortion recognize it as an inhuman and barbaric practice, necessary to protect a woman from unsafe and illegal surgical practices, optional for any woman under the constitutional Right to Privacy, expedient for the solving of any number of personal and social problems. But that is not the issue at stake. The issue at stake is a new lawlessness invading the most private and most sacred privacy of a human being and a constitutional right not given by law or government and therefore outside of their constitutional authority to annul or abrogate.

3. From Racist Hypocrisy to Medical Hypocrisy.

In his "The Paradoxes of the Legal Science", Benjamin Cardozo states a principle of Common Law, drawing a distinction between law and morality: "The just law has relation to acts… technical possibilities offer a peculiar basis for cooperation, which must be regulated. And this regulation forms the object of an independent method and study. (Development in technology) cannot be managed directly by the principles of good intentions...if we are to obtain final results. Our problems are of such nature that we must first answer them by means of rules of external conduct."

The just law has relation to acts: this basic principle of Common Law shatters the conviction expressed in Roe v. Wade that it is differences in ethical principles or moral convictions that determine one's view of the legality of certain acts. Law has to do with acts, not with intentions, and in studying issues of law, especially in disputes that have to do with human rights, it is the acts that are in question, not the personal character of the individuals involved or the moral probity of their intentions.

The most serious legal problem emerging from the abortion debate is the role of the doctor in performing abortions and in the implicit claim of medical science that abortion is merely a medical matter, subject only to the will of the patient and the willingness of the doctor to carry out that will. In reality, the doctor claims dominion over the life of the unborn and over that act which terminates the life of the unborn.

The law, contrary to every accepted principle of Common Law, has been reduced to the will of the patient and the willingness of the doctor, and the doctor remains the sole judge of his own act. The just law has relation to acts. Roe v. Wade, in a sense, has made the doctor the arbiter of the legality of his own acts, much as Lochner v. New York made the employer the arbiter of his own actions towards his employees.

From that principle, every species of external conduct is lawful and there is no legal standard by which to judge external actions. The just law has relation to acts, and matters of law, critical to the welfare of any organized society, cannot "be managed directly by the principles of good intention". When this happens, the final results are disastrous for human society, and the judiciary has forsaken its role for the sake of the private good of certain individuals.

In Roe v. Wade, abortion was accepted as standard medical practice, just as low wages, appalling working conditions and the grinding poverty of workers were accepted as standard contractual practices in Lochner v. New York. In both cases, the judiciary gave those exercising power over others the legal judgment over their own acts. In the case of abortion, the judiciary refused to examine the "medical" result of the surgical operation called abortion, or the claim of medical science that the procedure was merely a medical matter. The will of the patient and the willingness of the doctor were the only factors that entered into that judgment.

Just as surely as the failure to recognize that Black slavery involved the oppression, exploitation and violence done to kidnapped Africans was the root of the constitutional contradiction in Dred Scott, so the failure to recognize that abortion involves the violent extermination of unborn life is the root constitutional contradiction in Roe v. Wade.

There is a medical hypocrisy involved in the abortion question as there was a racist hypocrisy involved in the slavery issue, and something of a professional and institutional conspiracy to be silent about the medical facts of abortion. There is an ancient principle of Common Law which says: "Qui jure suo utitur, nomini facit injuriam" and the inverse is true: "Qui facit injuriam, non jure suo utitur". But there is a more ancient principle relating directly to the unborn, a basic guiding principle for that cooperation between law and medical science which formed one of the foundational laws of medico-legal history: "Qui in utero est pro jam nato habetur, quoties de ejus commodo quaeritur - He who is in the womb is held as already…born, whenever a question arises for his benefit."

These are ancient "rules of external conduct", which laid down the "basis for cooperation" between medical science, the law and the good of society, which were ignored in the adjudication of Roe v. Wade, or simply not known, and which can be brought out by legal argument in the litigation of actual cases.

The root procedural error in adjudicating Roe v. Wade was to look upon the decision as facilitative of a basic right, rather than constitutive of a right, and that was because of the dependence of the Justices on the written briefs of the NARAL, which had defended the view that abortion laws were fashioned solely to protect a woman from unsafe surgery. In consequence, the abortion issue was not seen in the progression of laws securing constitutional rights, and the issue of the unborn was considered peripheral to the case. As in the case of slavery, segregation, the exploitation of workers and child labor, the constitutional issue was given a legal cover that became the focus of the dispute and the deciding factor in the majority opinion. Only by future litigation can the real constitutional issue emerge.

 

3 - PRECEDENTS IN CONSTITUTIONAL HISTORY

1 .Bartolomé de Las Casas and the Genocide of the Indian Peoples.

2. Abraham Lincoln and the Abolition of Slavery.

3. Chief Standing Bear and the Rights of Native Americans .

4. Louis Brandeis and the Rights of Workers.

5. Hammer v. Dagenhart & United States v. Darby: Child Labor

6. Thurgood Marshall and the Outlawing of Segregation.

 

AMERICAN LAW IS NOT BASED on transcendent values, or some trans -historical ordering of human existence, but on historical experience. Juridic decisions in the United States' court systems, including the Supreme Court, depend upon the normative guidance of written laws, precedents, and from ongoing interpretation of these precedents. American law is not based on trans-historical ideals, however noble, but on historical actions firmly rooted in principles contained in the Constitution of the United States and on precedents and principles in Common Law.

Precedent embodies the constant in the juridic process, as it faces the variable to which the law must be continually applied. Constitutional history is a progression of laws, extending the protection of the law to persons not previously protected by the law, or whose rights under the law were not recognized ... and the outlawing of practices violating those rights. This progression shows the gradual extension of the law in space, to every person subject to the law, and in time, to every moment of human existence.

The problem in any legal dispute is tracing the legal ancestry of a particular dispute so that the case can be compared with its legal precedents, because as Justice Cardozo has observed, "Back of the precedents are the basic conceptions which are the postulates of legal reasoning." To mistake the precedent is to mistake the very nature of the dispute in question and, in consequence, to render an invalid or flawed decision.

The precedents in constitutional history and in constitutional law that are the legal ancestors of the abortion issue are those which were concerned with acts of violence, acts of violence done under cover of the law and for which the law itself provided justification.

The classic precedent in this series is one that opened the modern era of constitutional history, when European law extended itself outside the European community and had to face the indigenous peoples of other continents, indigenous peoples who were racially, culturally, religiously and politically different from themselves. It was an historical development that created the very concept of constitutional law, law in which human rights became the first work of government and the securing and safeguarding of human rights, the first work of law.

I - BARTOLOMÉ DE LAS CASAS AND THE GENOCIDE OF THE INDIAN PEOPLES

The Constitution of the United States is part of an historical development, which began in 1492, with the discovery of the North and South American continents. What began with that discovery, however, was not only the economic exploitation of these two new continents by European peoples, and a huge explosion of knowledge: geographical, ethnological and zoological: but new problems in human relations and law, in political theory and philosophy, in theology and anthropology, that tested the minds of the best scholars, developing juridic science and the theory of government into totally new areas.

With the coming of Columbus to Hispaniola, a period of conquest and exploration began: to extend the political domain of the Spanish Crown, to exploit the regions economically for the benefit of Spain and her citizens, and to subjugate and control the native Americans who were the inhabitants of these lands.

What was inaugurated by this colonial expansion was what has become known as the Spanish Theological-Juridical Renaissance, and it was opened by the experience, work and writings of one man, a Spanish landowner himself, Bartolome de Las Casas, who came to Hispaniola as a teenager and remained a participant and activist of what he considered the unlawful occupation and exploitation of lands that belonged to another, and not to the united kingdoms of Castile and Aragon, the Spanish Empire created by Ferdinand and Isabella.

His experience began with a friendship with one of the native Americans, a Taino, a boy his own age, given to his father by Columbus himself, when the father accompanied Columbus on his second voyage. It was from this firsthand experience of the quality of these indigenous peoples that Las Casas drew his huge respect for their persons and his conviction that the so called "conquest of the New World" was unlawful and unjust.

The boys parted when the Taino youth returned to Hispaniola, returned by order of the Queen, who forbade the enslavement of the native Americans. In 1502, after beginning his university studies, at the age of eighteen, Las Casas sailed for Hispaniola himself, where his father had been given an encomienda, a land grant with native American workers, by the governor of the island. It was the task of the young Las Casas to manage the plantation, to oversee the work of the native Americans, who had been assigned to work the land and to make the plantation profitable.

It was also the task of the plantations to supply provisions for explorations into the surrounding islands and onto the mainland, which at this time was totally unexplored. Ten years after his arrival, after he had returned to Europe to be ordained a priest, and had returned to become owner of a plantation, Las Casas joined one of these explorations, into Cuba. And it was on this exploration that he experienced the conquest firsthand, with its brutal murders and killings, its total disregard for the human rights of the native Tainos and Arawaks, and a catalogue of horrors that he was later to record in writings that shook the foundations of the Spanish Empire. One of them, The Decimation of the Indies, written thirty years later, brought about the passing of the New Laws under Charles V to correct some of the abuses.

What had begun as a peaceful exploration of an unknown territory, with several small settlements of Spaniards on or near Hispaniola, soon became an invasion by thousands of Spanish colonists, (seventeen ships sailed on Columbus' second voyage), who saw opportunities for untold wealth in the newly-discovered lands. These invasions were given the name conquistas, and, contrary to laws laid down by their own sovereigns, these conquistas were aimed, first of all, at commandeering the native "Indians", as they were called collectively, for service to the invading army. For this purpose, wherever an invading expedition landed, the local "Indians" were rounded up like cattle, any and all opposition brutally suppressed, and portioned out to the Spaniards as their personal possessions. This system of "portioning out", encomienda in Spanish, became the accepted method of colonization and the basis of the economy of Spanish America, a custom begun by Columbus himself, against the wishes and direct instructions from the Spanish Crown.

When Las Casas arrived in Hispaniola in 1502, during the lifetime of Columbus, the custom was just beginning, and as a maturing youth, he saw the growing evil. His own method was to gather his Indian "family" around him, and, through the young Taino who had been his page and companion, build bonds of trust and mutual respect, even though, legally, he was the "owner" of the Indians. It was his first expedition into new territory, the island of Cuba, that he saw the conquista in all its horrors, and this moved him to renounce his encomienda, refuse to own slaves and to begin his battle to inform the authorities in Spain of what was happening in what was called "the Indies".

In this, he joined forces with a small band of Dominican missionaries who had come to Santo Domingo in 1510, prepared to peacefully evangelize the Indians, and by kindness, gentleness and living examples of what Christians should be, attract them to the Christian Faith. For this, they needed no force of arms and were shocked and bewildered when they discovered that they were expected to be mere chaplains to an invading army. This they refused to do, and acting in their capacity of spiritual guides to the Spanish colonists, mounted a preaching campaign to inform the Spaniards that their actions against the native Indians were immoral and unjust. By the time their campaign was launched, in December of 1511, the native population of Hispaniola had been reduced from 3,000,000 when Columbus came to the island, to less than 30,000. The friars were determined to change the whole policy of colonization, with its record of murder, enslavement and oppression of the Indians, or to renounce their missionary presence in Spanish America. After his experience in Cuba, Las Casas agreed to be their spokesman in Spain and to make known to the King of Spain, the true nature of the conquista and the serious violations of the rights of the Indians.

1. The First Battle: Respect for the Indians.

Las Casas was in Spain from 1515 to 1520, his efforts to bring about changes in colonial policy hampered by the death of the King, Ferdinand, and by the death of his strongest supporter, Cardinal Ximénez de Cisneros, Archbishop of Toledo and regent of Spain after the death of the King. The new king, Charles, was also Holy Roman Emperor, and it was through his closest advisor, Cardinal Adrian of Utrecht, the future Pope Adrian VI, that Las Casas obtained his first hearing from King Charles.

It was while waiting for this hearing in Valladolid, where the court convened, that Las Casas began a study of the juridical questions related to the conquista, and where he began that exploration of the juridic principles underlying government and the nature of law. Receiving word from the Dominicans that all hope for the Indians was lost in the Caribbean islands, Las Casas devised a plan for the protection of the Indians which involved a land grant along the coast of Venezuela on the mainland, where Spanish conquistadors would not be allowed and where the only Europeans would be peasant farmers and missionaries to carry on peaceful evangelization among Indians whose freedom and autonomy and native culture would be respected.

When Las Casas returned to Santo Domingo in 1520, with a royal mandate to found his colony of free Indians, he found that exploitation of the mainland had already begun, after the conquest of Mexico by Cortez. His peasant farmers deserted him in their eagerness to enrich themselves and it was with great difficulty that he was able to obtain transportation to his royal land grant. When he arrived, he found the territory rampant with slave-traders, with raiding parties attacking Indian villages and enslaving the natives. Returning to Santo Domingo to seek the help of the Viceroy there in carrying out his royal mandate, Las Casas learned that the Spaniards he had left behind on the mainland had joined the slave-raiding parties, and that the Indians, in self-defense, had attacked his mission, slaughtering anyone they could find. Thoroughly discouraged at this complete failure of his efforts, he decided to join the most vocal defenders of Indian rights and entered the Dominican order in Santo Domingo.

Realizing in the face of the horrors he had experienced, that mere moral and religious principles were inadequate in protecting the Indians, Las Casas set himself to master history and juridic science, and for almost ten years, he remained in seclusion at Santo Domingo, in his own words, "to make clear the law", and to "penetrate to the pure waters of principle". It was a task he would continue for the rest of his life and it was from almost his efforts alone that a new juridic science would be born and that human rights would become the chief focus and primary concern of governments. What he had stumbled on in his studies and in his labors was what became known as the jus gentium, those laws that determine the relations of one nation with another, of one people with another, laws based, not on political power or military might, but on the common humanity of the peoples themselves. He turned his eyes first to the oppressed and enslaved Indians of Spanish America, but he saw it applied, not to one nation or people, but to the communitas orbis, the whole of humanity, summed up in the basic conviction of his whole effort: all humankind is one.

What he had stumbled and enunciated were the basic principles of constitutional law.

2. The Rights of the Indians.

For the next twenty years, from 1522 to 1542, Las Casas laid the groundwork for his assault on the conquista, with its policy of encomienda, or enslavement of the Indians. For four years, he remained in total seclusion in Santo Domingo, immersing himself in the study of history, philosophy, theology, law and jurisprudence. In 1526, he founded a Dominican monastery on the coast of Hispaniola, where he became prior. And it was here that he decided to make a record of Spanish atrocities in the "New World", and began the writings of his most famous works: the Historia de las Indias, and the Apologetica historia, his description of the newly-discovered Indians and their lands, with a wealth of geographical, ethnological, zoological and agricultural details, as well as descriptions of the people themselves, to refute the claims that the Indians were sub-humans, fit only to be the slaves of their European masters.

This was only one part of his campaign to defend the rights of the Indians. He still had powerful friends in court and his friendship with Cardinal Adrian of Utrecht, the tutor of the Emperor, finally bore fruit. In 1522, Adrian was elected pope and among his first actions was to send a letter of encouragement to Las Casas for his concept of an Indian Protectorate and for his defense of the rights of the Indians.

In 1528, came another opportunity. In that year, two Dominicans returned to Spain carrying letters to the Emperor and to the Council of the Indies, condemning in still stronger terms the treatment of the Indians in the New World and the policy of encomienda. This time his words had some effect. Charles V, his conscience stirred by the news of the conquest of Mexico, with all its horrors, convoked a special junta of the Council of the Indies and reform measures were passed. The encomienda was not abolished, but an alternative system was established and an anti-slavery law was passed.

Because he was recognized as the power behind the anti-slavery laws, Las Casas was placed under something resembling house arrest in Santo Domingo and every effort was made to silence him. A huge campaign was begun in Spain to discredit him and he now turned his efforts to some of his most important writings.

The first was his classic attack on conquest as a method of evangelization, De Unico Modo, which was sent to the Court of Spain and to the Dominican theologians at Salamanca, who were preparing their own examination of the Spanish presence in the Americas. With these he sent letters to the Council of the Indies and to prominent people at the Spanish Court who had influence with the King. Those letters had an effect and Las Casas received permission to work towards the founding of an, Indian Protectorate from which conquistadors and the encomienda system would be excluded. He chose the wildest and fiercest of the Indian tribes to carry out his plan, where no conquistador dared penetrate, the "Land of War" in Guatemala. Determined that his work receive the approval of the highest authority in the Church, Las Casas sent a copy of his De Unico Modo, through another Dominican friar, to Rome. In 1537, Pope Paul III responded with his encyclical Sublimis Deus, incorporating Las Casas' views, together with two other papal decrees, demanding compliance from the Spanish Crown and the Spanish government.

Angered, Charles V forbade the documents to be promulgated in Spain and confiscated the decrees. And under pressure from the conquistadors, who blamed Las Casas for the papal action, the King abolished the anti-slavery laws.

Seeing his work about to be destroyed, Las Casas composed his strongest denunciation of the Spanish conquest, his Decimation of the Indies, along with two shorter works directed to the Council of the Indies and the King himself: Sixteen Remedies for the Plague Destroying the Indies and How the Kings of Spain Must Care for the Indies. With these in hand, he prepared to return to Spain.

With the papal bull in hand, and threatening excommunication for anyone daring to enslave the Indians or depriving them of their rights, Las Casas appeared before the King and the Council of the Indies and achieved his greatest legislative triumph: the New Laws of 1542. Before calling the Great Junta which passed the laws, Charles V suspended all expeditions to Spanish America and consulted the greatest theologians in Spain on the justice of the Spanish policies. From this effort came, in words that might have been dictated by Las Casas himself: "The Laws and Ordinances Newly-Made for the Good of the Indies and the Preservation of the Indians. From this effort also came two classics on law from the University of Salamanca, from Las Casas' own Dominican brethren: the lectures of Francisco de Vitoria on De Indis and De Jure Belli, which gave juridic support to the Las Casas doctrine.

With this triumph, Las Casas was preparing to return to his work in the Indies, but the King insisted that he accept the bishopric of the poorest diocese in Spanish America, the diocese, of Chiapas in southern Mexico (he was offered the richest, that of Cuzco, in Peru, but he refused it, recognizing it as a bribe). Las Casas consented with the understanding that his diocese would include authority over the Indian Protectorate which he had founded in Guatemala. With this assurance, he was consecrated bishop on March 31, 1544.

3. The Final Battle: the Juridic Framework.

The juridic principles that Las Casas sought, he sought in the common humanity of Spaniard and Indian, and his determination came after his experience in the Spanish conquest of Cuba. He accompanied the newly-appointed Governor of Cuba, Diego Velásquez, in the "pacification" of the island. He was assigned to accompany the conquistadors, to make peaceful contacts with the natives, to assure them of the good intentions of the invading Spaniards. As the soldiers approached the small Indian village of Caonao, the timid Indians, terrified at the horses of the soldiers whom they had never seen before, were gathered in a large hut. They had brought food and water to the Spaniards, and Las Casas tried to calm them by telling them they had nothing to fear. Suddenly, one of the soldiers drew his sword and a slaughter of the Indians began. Las Casas gathered some of the Indians around him, trying to protect them with his own body, but the Spanish soldiers killed everyone in sight, even one that Las Casas had promised that he would come to no harm. Hundreds were massacred right in front of his eyes and it was then that he realized that such lawlessness could not be contained by mere vocal protest. He had to find the legal principles that would make such savagery outlawed. The massacre of Caonao remained in his memory for the rest of his life and it was that memory that led him to the legal principles that were the beginning of constitutional government: a government in which the rights of citizens was the first work of government and in which the first law of government was the securing and safeguarding of those rights. It was out of this effort and this concern that constitutional law was born.

II - ABRAHAM LINCOLN AND THE ABOLITION OF SLAVERY

The legal ancestry of abortion, the precedents in which the mirror of its legal ancestry is to be found, are those precedents that have to do with violence, violence under a legal cover that hides its true malice and its violation of human rights. That ancestry began, constitutionally, with the genocide of the Indian peoples in the wake of the Spanish conquest of the Americas and brought forth the two legal treatises that are considered the founding documents of international law and of constitutional law itself, the De Indis and the De Jure Belli of Francisco de Vitoria. The principles laid down in these treatises enunciated the principles upon which constitutional law would be founded and the very foundation from which constitutional law would flow: the inviolability of the Human Person.

Vitoria called his principles the carta constitucional of a people, rights that flow from the very fact that one is a human being. It was these rights and these principles that became the Constitution of the United States.

From the genesis of that Constitution at Philadelphia in 1787, everyone recognized one huge contradiction in the application of its principles: the rights and freedoms so nobly proclaimed as the very foundation of the nation, as the very substance of the Constitution, were denied to Black Africans who had been brought violently and forcefully to the continent as slaves. The principles set forth in the Declaration of Independence did not apply to them, and the wrongs inflicted on them surpassed any of the grievances that the American colonists had against the King and Parliament of England.

It was this contradiction and this massive injustice that created the political passion of Abraham Lincoln and it was the application of those rights set down in the founding documents of the nation to the Black Africans dwelling in the bounds of the continental United States that gave him his political agenda. For Abraham Lincoln, as for Bartolome de Las Casas, it was the savage violation of human rights that gave him his passion for the law, and he saw the law as securing and safeguarding the rights proclaimed in the Constitution for every human being.

For Lincoln, the United States was not just a union of states; it was a union of people in which the rights enunciated in the Declaration of Independence and guaranteed by the Constitution were the common possession of every citizen, and, eventually, the possession of every human being. Slavery was a cancer, eating away at the very foundation of the nation and threatening to destroy the noble experiment that had begun with the Declaration of Independence.

To deny to any citizen, or to any human being, the rights guaranteed by the Constitution, was to deny the very bond of union that constituted the United States as one people. Slavery was that denial and Lincoln saw, as the issue became a national crisis, that it was tearing apart the very constitutional fabric of the country, threatening the very existence of the United States as one people. That was the meaning of his House Divided speech:

"I believe this government cannot endure, permanently half slave and half free".

"I do not expect the Union to be dissolved - I do not expect the house to fall - but I do expect it will cease to be divided".

"It will become all one thing or all the other".

If it became all the other, it would cease to be the United States, since the very charter upon which the nation had been founded had been broken.

Slavery was a constitutional crisis that had been fermenting since the founding of the nation and if the freedom and rights promised by the Declaration of Independence and the Constitution to every citizen, to all people, did not become their common possession, that nation could not endure. At every constitutional crisis, brought to the surface by a Dred Scott, a Plessy v. Ferguson, a Muller v. Oregon, a Hammer v. Dagenhart, or a Roe v. Wade, the very identity of the nation is at stake. Do the rights embodied in the Constitution really apply to all? It is the denial of this that brings about the crisis.

The only antidote, as Lincoln saw it, was a return to the principles upon which the country was founded. "Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us return and wash It white, in the spirit, if not in the blood, of the Revolution."

To Lincoln, the words of Chief Justice Roger Taney in the Dred Scott Decision were a complete contradiction of the Declaration of Independence. Lincoln knew the facts that refuted Taney's statements, just as he had made himself thoroughly familiar with the principal dissent to the decision, that of Justice Curtiss. He also knew that the decision was clearly made with a "partisan bias", in language almost reeking with hatred for the Negro:

"It is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation...

"They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the Negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery…The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

Negroes, therefore, were "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."

In his rebuttal of Dred Scott, Lincoln devastates Taney's arguments:

"Chief Justice Taney, In his opinion in the Dred Scott case, admits that the language of the Declaration Is broad enough to include the whole human family, but argue(s) that the authors of that instrument did not intend to include Negroes, by the fact that they did not at once actually place them on an equality with whites. Now this grave argument comes to just nothing at all, by the other tact that they did not at once, or ever afterward, actually place all white people on an equality with one another...

"The assertion that all men are created equal was of no practical use in effecting our separation from Great Britain, and it was placed in the Declaration not for that, but for future use. Its authors meant it to be - as, thank God, it is now proving itself a stumbling block to all those who in after times might seek to turn a free people into hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should reappear in this fair land and commence their vocation, they should find left for them at least one hard nut to crack....

"I had thought the Declaration contemplated the progressive improvement in the condition of all men everywhere, but no, it was merely adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country. Why, that object having been effected some eighty years ago, the Declaration is of no practical use now - mere rubbish old wadding left to rot on the battlefield after the victory is won."

In every constitutional crisis, the tactic is to deny the human status of someone one wants to victimize, and Lincoln saw that this denial is the first step towards the dissolution of the Constitution. In the abortion crisis, there is no reason to deny human status to the unborn, just as there was no reason to deny human status to the Black slave. That denial is the first step in denying human status to someone else under some title that permits the victimization of that someone else. The so-called right to abortion is based solely on the easy availability of the surgical skills that make an abortion possible. That very availability is, in the long run, the real justification for demanding the right, just as the availability and advantage of slavery for the white owner was the real reason for insisting on the right to enslave the Black Man.

The one who has power over another, by some superior advantage of wealth, position or simply superior strength, claims the right under the law to exercise that power. That, Lincoln shouted to his countrymen, is the foundation of all tyranny, and tyrants are not easily dislodged. The perfect proof before his eyes was the text of the Dred Scott Decision, to be echoed later in the pages of Jefferson Davis's "The Rise and Fall of the Confederacy".

The Founders of the Republic, Lincoln said, "in the concrete pressure of a struggle for national independence... had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that today, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of reappearing tyranny and oppression."

The abolition of slavery, and the principles that Lincoln used to abolish it, is the most obvious legal ancestor to the issue of abortion. But there is no doubt about the difficulty of demonstrating that. "Even if time were adequate, the case, as it comes before the court is specific, concrete, the general shrouded in particulars. With the mind directed to these particulars...it will happen...that the universal element will sometimes be lost in its wrappings, the larger truth ignored…because our eyes are fixed upon the smaller one that lies before us at our feet." (Cardozo)

It is this larger truth that must be drawn from the precedents, as the facts of abortion are dissected with a legal scalpel. And the place for this is not the forum of public opinion or the Law Review, it is the courts. But that appearance in the courts must be supported and prepared for by solid scholarship and a mind alive to the legal issues involved. Those legal issues are not evident on the surface and are not always evident even in the opinions of the Court. Dred Scott and its successors are documentary proof that judges can be wrong, that critical constitutional issues can be lost in the multitude of cases that come before the court, that life-giving principles can wither and die in the perpetual flux of the judicial process. "No matter how firmly the task of interpreting the law is delegated to courts and legislatures, there is no escape in a democracy from the citizen's burden of saying the last word. Too often in recent years we have tended to slight that responsibility and leave the tasks of law to our judges alone. The tradition of community responsibility is the basis for the common law. And the common law is the matrix of our constitutional law, providing its atmosphere, its modes of action, and the creative vigor with which it defines the role of judges." (Rostow).

In the overturning of Roe v. Wade, it is that responsibility that has become an urgent necessity.

 

III - CHIEF STANDING BEAR AND THE RIGHTS OF NATIVE AMERICANS

In May of 1879, Judge Elmer S. Dundy, United States District Judge for the State of Nebraska, handed down a decision which had international repercussions in the legal community. The case, United States ex rel. Standing Bear v. Crook involved General George Crook, Commander of the Military Department of the Platte at Omaha, and Chief Standing Bear of the Ponca tribe. "Dundy's decision stated that Crook had illegally arrested Standing Bear and a small group of Ponca Indians, and that the General was therefore ordered by the court to release the Indians from custody."

It was the decision of Judge Elmer Dundy that gave the Indian, the Native American, recognition under United States law, and the background to that decision is a living witness of how the Constitution works to extend its principles to those not recognized as having rights under the law, or whose legal status under the law has been denied.

In 1877, after the lives of the Ponca Indians had been devastated by broken treaties and broken promises on the part of the Federal Government, the tribe had been reduced to dire poverty, as a result of a dispute which had given Ponca territory to the Sioux. In a sudden move, the Secretary of the Interior ordered the Ponca Indians, en masse, to locate from their reservation on the Niobrara in Nebraska to "Indian Territory", the present state of Oklahoma. "The action was necessary, Secretary of the interior Carl Schurz later explained, because the Ponca reversation had been given over to their ancient enemy, the Sioux, and the former residents had to be moved for their own protection."

The move only brought more misery for the tribe. Within a year, 158 of the original 700 Poncas were dead. The hardships of the journey from Nebraska, the lack of provisions, lack of adequate shelter and food and the complete insensitivity of the government to their plight, moved their Chief, Standing Bear, to take in hand the welfare of his people. In the move from Nebraska, Standing Bear had lost his own daughter, and he realized that if the tribe remained in Indian Territory, they would probably all perish.

The agent for the Department of the Interior wrote a letter of protest to the Department, but Washington was far away and nothing was done. The Poncas were told simply to find land in the Indian Territory that was suitable for them.

The agent wrote:

"It is a matter of astonishment to me that the Government should have ordered the removal of the Ponca.... without having first made some provision for their settlement and comfort. Before their removal .... an appropriation should have been made ... sufficient to have them in... a comfortable house.... As the case now is... these people have been placed on an uncultivated reservation to live in their tents as best they can."

In January, 1879, Standing Bear and several others of his tribe left Indian Territory at night and headed north in four wagons. They had twenty dollars in cash and a few provisions. Within three weeks, they were in desperate straits, without food, their horses weak from starvation. Begging their way along, they reached the reservation of the Omaha tribe in Decatur, Nebraska, where they were welcomed and offered land to settle on.

When news of the Poncas arrival in Nebraska reached Washington, orders were given through the military commander, General George Crook in Omaha to arrest the Poncas and return them to Indian Territory. Lt. W. L. Carpenter of the 9th U. S. Infantry at Fort Omaha accompanied by four men from his regiment, arrested Standing Bear and the other members of his tribe and detained them at Fort Omaha to be returned to Indian Territory.

At this point, an assistant editor of the Omaha Daily Herald, Thomas Tibbles, entered into the picture. He had apparently heard the story of the Poncas from General Crook, who sympathized with the Indians, but could not ignore orders from Washington. Tibbles interviewed the Indians and in a strange turnabout, the Poncas began to ask him questions. It was from these questions that the case of Standing Bear v. Crook would be presented to the court and that their rights as human beings would be decided by Judge Dundy.

"Why", the Indians asked, "were they imprisoned when they had committed no crime?"

"Why were they not free to live where they wished?"

"Why did not the same laws apply to Indians as applied to whites?"

"Why would it not be better for the United States to permit the Poncas to farm and raise their own food, instead of providing rations for their subsistence?"

The Indians told Tibbles that they knew their old way of life was gone, never to return, and that even though they were hunters, they would have to become farmers. They complained that they were not consulted in matters that pertained to their welfare and to their very survival, and that government policy should be directed to granting land to each Indian and protecting his claim to that land, to helping the Indians to become expert farmers and to providing for the education of young Indians the same way that provision was made for white children.

The Omaha community was incensed at the treatment of the Poncas, and telegrams were sent to the Department of the Interior to free the Indians and let them live their lives in peace, like other Americans. Those involved were determined to bring about a new Indian policy, in which the rights and freedom of the Indians would be respected.

On March 31, General Crook had a meeting with Standing Bear and some of the Poncas. One of Crooks' aides, recorded his impression of Standing Bear:

"Standing Bear, the head man, was a noble looking Indian, tall and commanding in presence, dignified in manner and very elegantly dressed in the costume of his tribe. He wore a shirt of blue flannel, having collar and cuffs of red cloth, ornamented with brass buttons, leggings of blue flannel, moccasins of deer skin, and over his shoulders was draped a beautiful blanket, one half red, the other half blue... The most striking feature of his attire was a necklace of claws of the grizzly bear, of which he appeared highly proud."

After the meeting, Tibbles, who was present, began a publicity campaign to generate national support for the Poncas. He sent articles to newspapers in New York, Chicago and several other eastern cities, wrote graphic accounts of the affair in the Omaha Daily Herald and made it clear that, in his opinion, to send the Poncas back to Indian Territory would be nothing "less than heartless, cruel murder".

The stand of the Secretary of the Interior was typical of official disinterest. He ignored the issue. Tibbles, on the contrary, recognized the case of the Poncas as parallel to the Black slave before the 14th Amendment and, in the light of the Constitution, which he read thoroughly, he decided to find out if the Indian was "a man or a brute", and whether the Indian "had any rights which a white man is bound to respect".

In an article entitled, "The Last Indian Outrage", which appeared in the Omaha newspaper in April, 1979, Tibbles made the whole city aware of the injustice to Standing Bear and his Poncas. As a result of this, he was able to obtain the services of two attorneys to prepare a case for the United States Circuit Court for the District of Nebraska. Before time ran out, the attorneys filed an application for a writ of habeas corpus with the court. The application alleged that the Poncas had been deprived of their liberty, that they had committed no crime, and that they did not know the reason for their arrest and confinement and that they asked the court to look into the matter. The writ was issued on April 8, 1879 and the trial began on May 1.

The trial lasted only two days.

The dramatic moment of the proceedings, after all other witnesses had been heard, was when Chief Standing Bear himself addressed the court. He spoke in his own language, but his remarks, sentence by sentence, were translated for the court.

Standing before Judge Dundy and stretching his hand towards the bench, the Chief did not speak for several minutes. Then he spoke, his hand still outstretched: "That hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be the same color as yours. I am a man. God made both of us."

Standing in his full dignity as the head of the tribe, Standing Bear explained why the Poncas wanted to return to their home on the Swift Running Water (the Niobrara), their traditional home. Then he said to Judge Dundy: "A man bars the passage...I... must obey orders. If he says that I cannot pass, I cannot. The long struggle will have been in vain. Looking straight at the judge and after a long pause, he said: "You are that man!"

Then something dramatic happened, never seen before in a court of law. General Crook, the defendant in the case, leaned forward and, with tears in his eyes, shook Standing Bear's hand. Women cried and even the judge was in tears, as the whole courtroom stood and shook the Chief's hand.

On May 12th, Judge Dundy rendered his decision. He ordered the Poncas released from custody. Then he faced the questions raised by the District Attorney, representing the Department of the Interior and General Crook: that there was no precedent for an Indian to invoke federal jurisdiction and that under English law, only citizens were entitled to a writ of habeas corpus and that Indians were outside the protection guaranteed by the Constitution, since that Constitution had been written by and for non-Indians.

English law, Judge Dundy declared, was "at a disadvantage when compared with our own" and the fact that no Indian had before invoked the habeas corpus jurisdiction of a federal court had nothing to do with the issue. Citing the federal habeas corpus statute that "parties" and "persons" may seek the writ, he concluded that the "comprehensive language ... applies to all mankind", and using language that echoed Standing Bear's own words, he said: "I must hold, then, that Indians are persons."

The critical issue in the matter was whether the United States had power to control the residence of Indians, and Judge Dundy declared he could find no statute or treaty conferring such power upon the United States, and that "no such... authority exists in this country".

The Secretary of the Interior did not appeal the decision, but he did all in his power make sure that other Indians were not aware of this precedent. What the Ponca case showed was that justice was possible for the Native American under the, Constitution, if that Constitution were appealed to in deciding a case. Final judgment on the case was left to Standing Bear himself. Speaking to one of his attorneys, John Webster, after the trial, he said: "In the past, when we have been wronged, we went to war to assert our rights and avenge our wrongs." Then he bent down and placed his tomahawk on the floor at the attorney's feet, rose and folded his arms: "I lay it down", he said, "I have no more use for it. I have found a better way."

Like Lincoln, Judge Dundy believed that the Constitution admitted of no exception, that it applied to all human beings without distinction, and that any human being within the continental United States was under the jurisdiction of the courts and could seek redress from them for the violation of constitutional rights, by the government or anyone else. The Standing Bear decision extended the protection of the law to Native Americans, in a decision that created a new precedent in United States Law. These precedents are created by litigation, by actual cases brought before the court, and without litigation, there is no way to secure these rights.

Roe v. Wade has not been challenged by litigation in the courts; litigation has focused on state laws restricting access to abortion. A constitutional challenge to the practice of abortion itself has never been made, and, unless such a challenge is made, the precedent set in Roe v. Wade will stand.

IV - LOUIS BRANDEIS AND THE RIGHTS OF WORKERS

For great lawyers and great judges, law is more than mere legal machinery, a means towards obtaining certain personal ends. The law itself was one of the highest forms of intellectual activity and the practice of law enabled people to resolve their differences in an orderly and civilized manner.

At the turn of the century, law, in the United States had become a tool of money barons and wealthy businessmen, who hired lawyers to use the law to protect their own private interests, and it was not an unfamiliar sight to see such leaders of business and corporation heads, surrounded by their corps of hired attorneys, in courts of law, using their hired legal lackeys, to flaunt the rules of justice and equity, determined to use the law and the courts for their own ends.

"By the 1890's, the legal profession had come to serve Mammon as God. A creed of laissez-faire and freedom of contract, wrapped in the sacred mantle of the Constitution, had elevated property rights to an unprecedented level... All efforts to protect people from the abuses of property ran afoul of the courts that consistently ruled that the Fourteenth Amendment precluded any and all infringements on the supreme rights of property."

State and federal laws that attempted to protect workers, promote social welfare, or safeguard human rights were held unconstitutional. Workers were prohibited by law not only from striking for higher wages or quitting their jobs, but from making any demands on their employers, because, under that legal philosophy, such actions would infringe upon the property rights of their employers.

The chief business of the courts, including the Supreme Court, was, on the word of one of the Justices, "the enforcement of property rights". Government itself was said to have no power to infringe on property or to restrict the liberty of property owners in the accumulation of wealth and the prosperity of their business enterprises. Liberty of Contract was enshrined as the constitutional right and in case after case, since the end of the Civil War, became the supreme constitutional precedent.

It was one lawyer, Louis Brandeis, who tackled this problem head on and helped to return constitutional law to a securing and safeguarding of human and personal rights. The human and personal rights in jeopardy at the time were the rights of workers in factories, and it was to the defense of workers' rights in the court that he devoted his efforts, becoming known as the "peoples lawyer". He is responsible for a watershed decision of the Supreme Court in which workers' rights, for the first time, were given the protection of the Constitution. The case was Muller v. Oregon and it prepared the way for the social legislation and Supreme Court decisions that supported and further the rights of the common citizen.

The Brandeis Brief, for which Muller v. Oregon became famous, was the most innovative change in litigation since the writ of habeas corpus became part of English law, and it had the same dramatic effect upon the juridic process. What it did was to give facts, empirical facts, an equal standing with precedent in adjudicating cases. What it brought about was a healthy tension between precedents, legal decisions facing problems in the past, and new situations, which are the basis for legal decisions in the present.

"On February 19, 1903, the state of Oregon passed a law establishing a maximum of ten hours' work a day for women employed in manufacturing, mechanical establishments, and laundries. Joe Haselbock, overseer of Curt Muller's Grand Laundry in Portland, broke the law on September 5, 1905, by requiring Mrs. Elmer Gotcher to work more than ten hours. Muller was charged on September 18, found guilty of a misdemeanor, and fined ten dollars. Muller appealed to the Supreme Court of Oregon, which affirmed his conviction, and then to the Supreme Court of the United States."

Florence Kelley, secretary general of the National Consumers' League, when she heard of the case, recognized that it could be a landmark decision and she wanted to make sure that the best possible case would be made to limit the working hours of women and to demonstrate that long hours of work adversely affected the health and safety of women. Louis Brandeis, who had pioneered the defense of workers' rights in the Boston area was approached and asked to take the case. He, too, recognized the importance of the case and in November of 1907 began research in preparation for his appearance before the Court.

What Brandeis was preparing in Muller v. Oregon was a direct attack upon industrial tyranny, the legal abuse of Liberty of Contract to deprive workers of just wages, to submit them to working conditions that were a danger to their health and safety, to provide them with no security for their jobs or any control over their employment, forbidding them any part in the negotiation process which led to their employment. All of the advantages were on the side of the owners, chiefly in the form of low expenses and high profits; all the disadvantages were on the side of the workers, in the form of low wages and appalling working conditions. The rights of the owners were recognized by law, the rights of the workers had no protection in the law. Brandeis recognized this as a form of economic servitude, contrary to that equality under the law assured every citizen by the Constitution. The enforced condition of the workers was unconstitutional.

Submitting over a hundred pages of statistics, Brandeis concluded his Brief with the following submission:

"Long hours of labor are dangerous for women primarily because of their special physical organization. In structure and function women are differentiated from men. Besides these anatomical and physiological differences, physicians are agreed that women are fundamentally weaker than men in all that makes for endurance: in muscular strength, in nervous energy, in the powers of persistent attention and application. Overwork, therefore, which strains endurance to the utmost, is more disastrous to the health of women than of men, and entails on them more lasting injury.

"Such being their physical endowment, women are affected to a far greater degree than men by the growing strain of modern industry.

"The evil of overwork before as well as after marriage upon childbirth is marked and disastrous.

"When the health of women has been injured by long hours, not only is the working efficiency of the community impaired, but the deterioration is handed down to succeeding generations...The overwork of future mothers thus directly attacks the welfare of the nation.

"In order to establish enforceable restrictions upon working hours of women, the law must fix a maximum working day.

"We submit that in view of the facts above set forth and of legislative action extending over more than sixty years in the leading countries of Europe, and in twenty of our States, it cannot be said that the Legislature of Oregon had no reasonable ground for believing that the public health, safety, or welfare did not require a legal limitation on women's work in manufacturing and mechanical establishments and laundries to ten hours in one day."

Faced with this wealth of information, the Court was overwhelmed by Brandeis' presentation, mentioning him by name in their unanimous decision. Their conclusion was the setting of a new precedent for the Court: "(We) are of the opinion that it cannot be adjudged that the act in question is in conflict with the Federal Constitution."

Louis Brandeis' research had covered the whole field of labor relations, working conditions, industrial practice, legislative action and social impact, domestic welfare. He spoke of higher accident rates, strain upon the worker, the inevitable neglect of children, the modern conditions of the work-place: "Machinery Is increasingly speeded up, the number of machines tended by individual workers grows larger, processes become more and more complex as more operations are performed simultaneously. All these changes involve correspondingly greater physical strain upon the worker."

For the first time in the history of industrial legislation, the focus was upon the worker: the rights of workers, the conditions under which they worked, the obligations of employers to provide a safe and healthy workplace, and the right of the state to intervene in such matters with appropriate legislation. In the past, the Court had refused to consider the rights of workers or the inequality of their position with regard to employers. Liberty of Contract must be protected at all costs. With Muller v. Oregon, equality under the law became a living reality for workers and Lochner v. New York was no longer the precedent.

The Supreme Court decision laid down the new principle: "It is equally well settled that this liberty (of contract) is not absolute and extending to all contracts, and that the State may, without conflicting with the Fourteenth Amendment, restrict in many respects the individual's power to contract." That precedent made possible legislation. Protecting the worker from unfair and unsafe working conditions and made the worker an equal partner with the employer.

Until the time of Louis Brandeis, it was impossible to get the Supreme Court to consider the rights of workers, just as it seems impossible in the wake of Roe v. Wade to bring the Court to consider the issue of unborn life and its destruction as the real focus of the abortion dispute. That is done by litigation, by bringing before the Court again and again actual cases in which the medical and surgical methods used in destroying unborn life are part of the dispute.

Just as Liberty of Contract was used as a legal cover for gross injustices to workers, hiding the violation of their constitutional rights, so the Right to Privacy is used in the abortion issue as a legal cover for the violent death of the unborn. Similarly, just as the Court finally recognized that freedom of contract is not unlimited and could be used for the exploitation of others, so the Court has to be persuaded that a right to privacy has its limitations and cannot be used a legal cover for violent actions.

That is the importance of precedents: they provide a pattern for the examination of like cases and provide as well an analogy for the solving of future cases. The direct challenge by Brandeis to the flawed application of the Fourteenth Amendment by appealing to the empirical facts of employment demonstrated that the appeal to Liberty of Contract was a sham, was a cover for unlawful acts, depriving the worker of a decent livelihood, safe and healthy working conditions and an equal partner in his own employment. Once that legal hurdle was surmounted, the states could legislate to correct specific practices.

Like the abolition of slavery and Standing Bear v. Crook, Muller v. Oregon extended constitutional protection to persons whose rights were not recognized by law, broadening the scope of constitutional rights and creating new precedents for future cases. The case of the unborn is more difficult, since the unborn cannot speak for themselves and cannot enter directly into the litigation. But the patterns and precedents are there, as well as the principles of Common Law that do apply to the unborn. What is needed is massive research to link these precedents with the question of the unborn and those principles to the new historical conditions to which they must now be applied.

 

V - HAMMER V. DAGENHART & UNITED STATES V. DARBY: CHILD LABOR

The issue of child labor was one that burdened society since the rise of industry and in England, as the factory system swept the country, it became a veritable scourge. In the industrial centers of the country, Birmingham, Liverpool and London, as well as in the mines of Wales, child labor was part of the economy and it was only as the writings of Charles Dickens brought the practice into public consciousness that laws were framed to protect the rights of children.

The Health and morals Apprenticeship Act of 1802 was an initial attempt to protect children from factory conditions, but it was not until the Factory Act of 1833 that some restrictions were placed on the employment of children. With the lifting of public consciousness by the writings of Dickens, the Poor Law Amendment of 1868 was passed, followed by the Infant Life Protection Act of 1872, the Guardianship of Infants Act of 1886, and the Custody of Children's Act of 1891. After the turn of the century, public demand became stronger and the Children's Act of 1908 and the, Education Act 1918 were passed. Finally, the Children's Act of 1932 and the Children and Young Person's Act of 1933, brought child labor in Great Britain, legislatively, to an end.

In the United States, Child Labor Laws were opposed by factory owners, employers and parents, and a first attempt in New York State to pass a child labor law was defeated, with the support and backing of the Catholic Bishops in the state. It was only after 1908, when Muller v. Oregon had brought the conditions of workers into public consciousness and another case, Bunting v. Oregon, had extended workers' rights further that the question of child labor was brought up before the Court.

Like Plessy v. Ferguson and Lochner v. New York, the Child Labor Case, as it was called, is considered one of the low points in the history of Supreme Court decisions. The case, Hammer v. Dagenhart, followed on the heels of a federal statute aimed specifically at the suppression of child labor. The Federal Child Labor Act of 1916 barred from shipment in interstate commerce products of factories which either employed children under the age of 14 or allowed children between the ages of 14 and 16 to work more than eight hours a day, or more than six days a week, or at night.

In North Carolina, Roland Dagenhart, whose two teen-age sons were employed in a cotton mill, filed a bill in federal district court on behalf of himself and his sons, against W.C. Hammer, United States District Attorney, to prevent the enforcement of the act. The district court held the Child Labor Act unconstitutional and appeal was made to the Supreme Court.

The stated purpose of the federal statute was to suppress child labor, but the majority opinion of the Court chose to ignore that issue and treated the matter as a congressional interference with manufacturing, which, the Court claimed, was a prerogative of the states. The Court struck down the law and, in effect, made impossible any federal regulation of the practice of child labor. As one constitutional commentator remarked on the case: "If a practice like child labor is to be dealt with effectually, it must be by national regulation. By rigidly excluding Congress from exercising regulatory authority, the Child Labor Case virtually decreed that child labor should be left to... an unrestrained system of laissez faire. The United States, alone among nations, was precluded from taking effective action against an evil so widely censured by public opinion."

The majority decision in Hammer v. Dagenhart brought forth one of the strongest dissents of Justice Oliver Wendell Holmes, one almost equaling his dissent in Lochner v. New York. His words were heated and scathing, pointing out the hypocrisy of the act in refusing to recognize the real evil that statute was confronting. It was Holmes reasoning that would overturn Hammer v. Dagenhart almost twenty-five years later.

"If there is any matter upon which civilized countries have agreed - far more unanimously than they have agreed with regard to intoxicants and some other matters over which this country is now emotionally aroused - it is the evil of premature and excessive child labor. I should have thought that if we were to introduce our own moral conceptions where in my opinion they do not belong, this was preeminently a case for upholding the exercise of all its powers by the United States .....

"The Act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the State line they are no longer within their rights....

"The public policy of the United States is shaped with a view to the benefit of the nation as a whole.... The national welfare as understood by Congress may require a different attitude within its sphere from that of some self-seeking State… It does not matter whether the supposed evil precedes or follows transportation. It Is enough that In the opinion of Congress the transportation encourages the evil. I may add that in the cases on the so called White Slave Act it was established that the means adopted by Congress as convenient to the exercise of its power might have the character of police regulations.... I see no reason for that proposition not applying here." 1

Commercial interests were still a powerful deterrent to Supreme Court action and the precedents set in Muller v. Oregon and Bunting v. Oregon had not firmly taken hold. With the appointment of Louis Brandeis to the Court in 1916, Justice Holmes would be joined in his dissents by another powerful advocate of personal rights, and with the appointment of Benjamin Cardozo in 1932, the dissents of these strong voices for change began to take hold. In 1941, when United states v. Darby came before the Supreme Court, Hammer v. Dagenhart was overturned.

In 1938, the Congress passed the Fair Labor Standards Act which prohibited the shipment in interstate commerce of goods produced by employees who were paid less than a minimum wage, or who worked over 44 hours a week without overtime pay. The act also required employers to keep records of workers' wages and hours.

Fred Darby, who operated a lumber business in Georgia, was indicted for violating these provisions. A federal district court threw out the indictment. It ruled the Fair Labors Standard Act unconstitutional on the grounds that Congress could not regulate manufacturing, appealing to Hammer v. Dagenhart. The United States appealed to the Supreme Court.

United States v. Darby is a remarkable case since it overrules a previous decision by name. The decision also shows the influence of the dissents of Justice Holmes and the twenty-five years of Justice Brandeis presence on the Court. The decision of the court stated: "The conclusion is inescapable that Hammer v. Dagenhart was a departure from the principles which have prevailed in the interpretation of the commerce clause both before and since the decisions, and that such vitality, as a precedent... has long since been exhausted it should be and now is overruled."

The importance of United States v. Darby is in the power of dissent in the Court. The mounting dissents of John Marshall Harlan, Oliver Wendell Holmes and Louis Brandeis eventually turned the Court in a totally new direction: concern for personal and individual rights. Through the power of those dissents, the Court itself began to realize that its primary role was the securing, safeguarding and strengthening of personal rights, the constitutional rights of the citizens of the United States.

Before 1973, the question of the unborn had never entered the legal arena and there is no case brought before the Supreme Court in which the rights of the unborn or the issue of unborn life was even touched upon, and this was because the protection of unborn life was assured by state laws. Abortion as a national issue came about through the efforts of the National Association for the Repeal of the Abortion Laws. The NARAL, and allied organizations, and Planned Parenthood, which wanted a change in the national policy. That policy, as embodied in state laws, could only be changed by challenging the constitutionality of the state laws. That was the tactic used in Roe v. Wade. The reverse tactic is to challenge the constitutionality of Roe v. Wade itself, by actual cases involving individuals or class action suits.

After the outlawing of segregation, which was the final act in defeating court-protected racism, the next step in the progression of cases involving personal rights, was the rights of the unborn, following the Court's recognition of children's rights, in reversing Hammer v. Dagenhart. That question was opened with Roe v. Wade.

 

VI - THURGOOD MARSHALL AND THE OUTLAWING OF SEGREGATION

Brown v. Board of Education is the model precedent for the overturning Of Roe v. wade, since it shows how difficult it is to reverse a precedent of long-standing with the Court, which has been appealed to under stare decisis countless times in Supreme Court decisions. But it also shows how such a reversal can be accomplished, and how cases are brought before the Court to reconsider past decisions. In every case, however, there must be a real constitutional issue at stake, and it is the constant, consistent and renewed insistence on this constitutional issue that emerges from litigation and ultimately convinces the Court.

The outlawing of segregation in the United States had three phases: 1) the period of slavery itself, ending with the 13th, 14th and 15th Amendments. 2) the period from 1875, when the Supreme Court began to erode those Amendments in cases involving Black Americans, culminating in Plessy v. Ferguson in 1896, 3) the period from 1896 to the overturning of Plessy v. Ferguson in 1954.

The first period was highlighted, in Supreme Court history with the Dred Scott Decision in 1857, the second with the Civil Rights Act of 1875, which was struck down by the Court in 1883, the third saw the establishment of the NAACP, the founding of the Howard University Law School under Charles Houston, and the appearance of Thurgood Marshall before the Supreme Court. It was that appearance, the final result of years of litigation on the part of the NAACP in the lower courts, that ended segregation as a national policy and overturned Plessy v. Ferguson as a precedent in cases involving African-Americans.

Thurgood Marshall was born in Baltimore in 1908 and grew up there and attended Lincoln University in Oxford, Pennsylvania, where he graduated in 1930. He was one of the first students to study at the Howard University Law School in Washington, D.C., newly organized and directed by Charles Houston, who had come under the influence of Louis Brandeis at Harvard. It was his tutelage under Houston that turned the young Marshall into a first-class student, a meticulous scholar and brilliant lawyer. In his reorganization of the Howard Law School, Charles Houston had toughened admission standards, built up the law library, and fired people right and left. He brought in the best Black legal scholars that he could find, graduates of Harvard, Amherst, Ohio State and Northwestern and exposed his students to the best legal minds in the country, like Dean Pound of Harvard. Later, Thurgood Marshall would describe his training under Houston:

"He was hard-crust. First off, you thought he was a mean so-and-so. He used to tell us that doctors could bury their mistakes but lawyers couldn't. And he'd drive home to us that we would be competing not only with white lawyers but really well-trained white lawyers, so there just wasn't any point in crying in our beer about being Negroes. And I'll tell you - the going was rough. There must have been thirty of us in that class when we started, and no more than eight or ten of us finished up."

Other students described their training under Houston: "Oh, he was a tough disciplinarian", one wrote. "He kept hammering at us all those years that, as lawyers, we had to be social engineers or else we were parasites."

"In our classes", Wrote another, "stress was placed on learning what our rights were under the Constitution and statutes - our rights as worded and regardless of how they had been interpreted to that time. Charlie's view was that we had to get the courts to change and that we could and should no longer depend upon high-powered white lawyers to represent us in that effort."

What happened was the complete transformation of the Howard Law School and of the Black legal community. "Howard Law School became a living laboratory where civil-rights law was invented by teamwork." What was being created at Howard was the groundwork for a complete renovation of constitutional law as it applied to the Black citizen. The goal was a major assault on segregation laws and Plessy v. Ferguson. For that to happen, a miracle was needed to fund the project.

The miracle came in the form of the Garland Fund, a Fund for Public Service, set up by a twenty-one year old Harvard millionaire named Charles Garland in 1922. He felt it was wrong to accept money he had not earned, and in that year set up a fund to further social reform. In 1929, the fund made a grant of $100,000 to the NAACP with a specific purpose in mind: "to carry out a large-scale...campaign to give the Southern Negro his constitutlona1 rights, his political and civil equality. Part of the campaign was the funding of legal suits in those states most notorious for their discriminatory policies towards Blacks. The suits were aimed at the complete abolition of segregated schools.

At first the campaign backed suits in states where segregated schools were obviously unequal, since the heart of the Plessy v. Ferguson decision was that "separate, but equal" schools were constitutional. Soon, however, it was decided to attack directly the very practice of segregation as unconstitutional.

In 1950, in a suit in the Court of Appeals for the District of Columbia, the court ruled against the Black plaintiff, but the one dissenting opinion in the case gave the Legal Fund of the NAACP, headed by Thurgood Marshall, the opening it had been waiting for in challenging the segregation laws.

The dissenting opinion of Judge Henry Edgerton read: "School segregation is humiliating to Negroes. Courts have sometimes denied that segregation implies inferiority. This amounts to saying in the face of the obvious fact of race prejudice, that the whites who impose segregation do not consider Negroes inferior. Not only words but acts mean what they are intended and understood to mean.... Segregation of a depressed minority means that it is not thought fit to associate with others. Both whites and Negroes know that enforced segregation in schools exists because the people who impose it consider colored children unfit to associate with white children."

In the tradition of Louis Brandeis, Judge Edgerton filled his dissent with exhaustive data from a Congress-ordered study. Thurgood Marshall and his band of lawyers decided to bring the matter before the Supreme Court itself and to challenge the constitutionality of Plessy v. Ferguson.

In 1952, five cases challenging segregation were appealed to the Supreme Court, from suits in four, different states: Kansas, North Carolina, Virginia and Delaware. The lawyer who would argue the cases for the school districts involved was John W. Davis, former Solicitor General of the United States and a candidate for the Presidency on the Democratic ticket in 1924. He was considered the "most accomplished and admired appellate lawyer in America, (and he) never doubted that he would successfully defend the constitutionality of segregated schools before the Supreme Court." The lawyer who would represent the NAACP before the Supreme Court was Thurgood Marshall. The legal labor of a lifetime was bearing fruit in these cases before the Supreme Court. The cases were known collectively as Brown v. Board of Education.

2. The Care and Education of Black Children

It all began with a bond issue for a new school in Merriam, Kansas…a school for White children. The school for Black children was old and dilapidated, without plumbing, adequate heating, with only a tiny basement. Like most school districts in Kansas, segregated schools in small towns were illegal, but this did not deter the local school boards. Black children would not go to school with White children, illegal or not.

A little lady named Esther Brown (whose last name had nothing to do with the case, she was White), incensed that a $90,000 bond issue for a new White school was being considered while the school for Black children was in such a state, organized a small campaign to oppose the bond issue unless something was done for the Black children. The bond issue was passed in spite of her opposition, and she became a veritable whirlwind of opposition to the new school, giving talks in the area to raise money for a lawsuit.

Getting little support even from the Black community, many of whom considered her a trouble-maker, she contacted the local office of the NAACP and hired a Black lawyer to represent the cause of the Black children in court. Thurgood Marshall's office in New York sent a civil rights lawyer to help with the case and against all expectations, they won. The Merriam school board was ordered to admit the Black children to the new White school. The war was on.

Recognizing the sheer injustice of segregated schools, Esther Brown decided to launch a campaign to challenge segregated schools in Kansas. Contacting the NAACP office in Wichita, she found the Black community there cool to the project, but when she approached the office in Topeka, she found ready collaborators. At that time, the NAACP office in Topeka was in the middle of a battle with the Topeka school board over the neglect of the schools for Black children, and was demanding an integrated school system. When after several attempts, that demand was turned down, the Topeka NAACP prepared for an all-out legal assault on the segregated school system.

In order to initiate a suit against the Topeka school board, plaintiffs were needed and from among the several parents who had tried to enroll their children in a school for White children, the name of Oliver Brown was chosen to head the class action suit. The case was officially filed on February 28, 1951 in the United States District Court for Kansas. The case would be known to history as Brown v. Board of Education of Topeka.

The Topeka case was just one of many being funded by the Legal Defense Fund of the NAACP, headed by Thurgood Marshall. There were simultaneous suits in Atlanta, New Orleans, Virginia and Delaware. But two civil rights lawyers from the New York office were dispatched to Topeka and the case opened on June 22, 1951. The NAACP lost the case, but the comments of the judge pointed the way to where the solution was to be found. "If it weren't for Plessy v. Ferguson, we surely would have found the law unconstitutional. But there was no way around it - the Supreme Court had to overrule itself." The case was appealed to the Supreme Court.

The five cases known collectively as Brown v. Board of Education were given a first hearing by the Supreme Court in December of 1952. Because of the widely divergent views of the individual justices on the case, with no clear majority opinion emerging, the case was tabled for future reargument, most probably at the beginning of the next term, in the fall of 1953. Before that time, however, the Chief Justice Fred Vinson died, and when the next term opened, the Supreme Court had a new Chief Justice, Earl Warren, Governor of California and close friend of President Eisenhower, who appointed him. When the new term of the Supreme Court opened in the fall of 1953, the new Chief Justice was firmly in charge of the Court and the decision handed down in the case of Brown v. Board of Education, was the first in a number of startling cases that indicated a new direction for the Court. In a unanimous decision, Plessy v. Ferguson was overturned and segregation in the schools of the United States was declared unconstitutional. In the case of school segregation, stare decisis did not hold and the Court had a new precedent to appeal to in cases involving Black citizens.

The decision handed down made Brown v. Board of Education a watershed case in American constitutional history, the result of widespread litigation, careful research, meticulous planning and the appeal to facts in the tradition of Louis Brandeis. "We conclude", the decision stated, "that in the field of public education the doctrine of separate, but equal has no place. Separate educational facilities are inherently unequal.... Segregation is a denial of equal protection of the laws."

Brown v. Board of Education spelled an end to court-protected racism and the lesson to be learned from that decision is that the Constitution itself holds the solution to such questions. Slavery, racism, segregation, child labor, all are patently contrary to the Bill of Rights and to the proposition that "all men are created equal. What has to be aligned with the Constitution, however, as Louis Brandeis demonstrated in the Brandeis Brief are the facts of any given dispute, the empirical facts underlying the case. It is that alignment of facts with principles and precedents that reveals the constitutional rights involved in the case, the constitutional rights that are being violated.

If in the precedents are to be found "the basic juridical conceptions which are the postulates of legal reasoning", in the facts are to be found the legitimate offspring of those precedents, from which new precedents are born, and new disputes resolved.

 

4 - HISTORIC SUPREME COURT REVERSALS

Dred Scott v. Sandford – SLAVERY – Reversed by 13^th, 14^th 15^th, Amendments.

Plessy v. Ferguson – SEGREGATION – Reversed by Brown v. Board of Education.

Lochner v. New York – WORKERS’ RIGHTS – Reversed by Muller v. Oregon.

Hammer v. Dagenhart – CHILD LABOR – Reversed by United States v. Darby

1. THE MAJOR REVERSAL of a Supreme Court decision is that reversed by the 13th, 14th, and 15th Amendments of the Constitution, abolishing slavery in the United States. The Dred Scott Decision is a tragic example of a flawed Supreme Court decision and the legal reasoning in the decision, as Abraham Lincoln recognized, is a classic study of legal hubris and the failure to recognize a moral issue at the heart of a legal dispute. Lincoln's comment upon it reveals the human tragedy that such a flawed decision carries in its wake and the insensitivity of the legal mind when it reduces a massive human problem to the unfeeling niceties of paper logic.

Of the Black slave, whose fate was sealed by this decision of the Supreme Court, Lincoln wrote:

"They have him in his prison-house; they have searched his person, and left no prying instrument. One after another, they have closed the heavy doors upon him, and now they have him, as it were, bolted with a lock of a hundred keys, which can never be unlocked without the concurrence of every key - the keys in the bands of a hundred different men, and they scattered to a hundred different places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is."

The dispute, however, which launched the Civil War and brought about the passing of the 13th,14th and 15th Amendments did not end with the end of the conflict and the amending of the Constitution. Within five years of the passing of the 15th Amendment (1870), the Supreme Court began to hand down a series of decisions that, in effect, undid the work of the three Amendments, dismantling their provisions item by item, restricting the rights of Black citizens by denying them the protection of the law, and institutionalizing by Court decree, the discriminatory policies of the states in which Black citizens resided. The Court turned back every attempt to seek the protection of the courts and in decision after decision, created precedents that culminated in the case that set the precedent for race relations in the United States for the next fifty-eight years: Plessy v. Ferguson.

2. The Overturning of Plessy v. Ferguson.

In Supreme Court history, Plessy v. Ferguson is listed simply as 163 U.S. 537 (1896), but it is a pivotal case in the history of constitutional law, since it institutionalized racism in public life and legalized segregation as a national policy. In the words of one constitutional scholar: "It was the seminal decision, which for more than half a century, made equal protection no more than a hortatory slogan for African-Americans. While the... Court developed the Fourteenth Amendment's Due Process Clause as the principal safeguard of property rights, its Plessy decision ensured that the amendment was of little value to the Blacks for whose benefit it had been primarily adopted."

The case was but one of a series of cases brought before the Court from 1875 onwards, when the Court began to show a definite racist bias. The beginnings of Plessy was one of many statutes passed by Southern states testing the legal force of the 14th Amendment. In 1890, the Louisiana legislature passed "An Act to Promote the Comfort of Passengers", an Act that stated that "All railway companies carrying passengers in their coaches in this State, shall provide equal but separate accommodations for white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations."

The railroads were generally sympathetic to the complaints of the Black citizens about the policy, since the providing of separate cars for Black and White passengers was an added expense, and they urged members of the Black community in Louisiana to test the statute.

In 1892, a light-skinned Black named Homer Plessy took a seat on a car reserved for Whites and was asked by the conductor to move to the car reserved for Blacks. He refused and was arrested by a police officer and brought before Judge John H. Ferguson of the Criminal District Court of New Orleans. Plessy pleaded that the Louisiana statute was a violation of his rights under the Fourteenth Amendment, but Judge Ferguson ruled against him and the case was appealed to the Louisiana Supreme Court, which approved Plessy's petition to take his case to the United States Supreme Court.

It was four years before the case came before the Court and the majority opinion, written by Justice Henry Billings Brown, stated:

"The object of the (14th) Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either."

Then came the principle that would become the precedent in the matter of segregation for the next fifty-eight years, and which would be appealed to under stare decisis until Brown v. Board of Education overturned Plessy in 1954:

"We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

The most pointed commentary on this decision is by Richard Kluger in his exhaustive study of Brown v. Board of Education: "Justice Brown and seven of his eight brethren had tortured truth to make the shoe fit: racially separate facilities, so long as they were equal, could legally be ordained by the state; segregation was not discrimination. To reach that conclusion, the Court had to indulge in a willful reading of human nature and to abuse case law, common law, and common sense. In dismissing the wound men suffer when forcefully separated from their fellow citizens for no reason beyond the pigmentation of their skin, the Supreme Court was reduced to pretending that the resulting pain was self-inflicted, the result of an overly fragile psychological makeup. It was unfortunate, said the Justices, but that was life."

The lone dissent was from Justice John Marshall Harlan, and his dissent was a complete rejection of the majority decision. He stated boldly the constitutional issue at stake, in words that might have been uttered by Abraham Lincoln: "Our constitution is color-blind, and neither knows nor tolerates classes among its citizens. In respect of civil rights, all citizens are equal before the law."

The overturning of Plessy v. Ferguson would take fifty-eight years, not until a mature, well-informed and politically astute Black community set it sights to demonstrate that segregation and Plessy were unconstitutional.

The first faint beginnings came from the newly-organized National Association for the Advancement of Colored People, the NAACP, in 1915, which submitted amicus curiae briefs, in cases involving Black citizens, to the Supreme Court, usually without success. As injustices to Black citizens mounted and cases were defeated in the courts, one man realized that what was needed was a highly-trained corps of Black lawyers to go into the courts and obtain justice for Black citizens. The man was Mordecai Johnson, President of Howard University in Washington, D.C., the most prominent Black university in the country.

Three other men had a hand in initiating the effort that would overturn Plessy v. Ferguson: Justice Louis Brandeis, who told Mordecai Johnson that what was needed in the country was a first-class law school for Blacks; Charles Houston, who had come under Brandeis' influence at Harvard, chosen to organize and direct the Howard Law School; and Thurgood Marshall, one of the first students trained by Houston, who would lead the battle against segregation in the courts.

In 1934, twenty years before Brown v. Board of Education came before the Supreme Court, the team was ready for its first major assault on Plessy v. Ferguson. The NAACP, with Houston and Marshall as its attorneys, challenged the constitutionality of segregated law schools in the State of Maryland. In a rousing victory, the Maryland Court of Appeals ordered the admission of a Black student, Donald Murray, to the University of Maryland Law School. Murray v. Maryland marked the beginning of massive litigation to overturn Plessy v. Ferguson in every state. That effort would take twenty years.

By 1952, when Brown v. Board of Education came before the Court, the Legal Defense Fund of the NAACP had had a mixed history of successes and failures in the courts. The most note worthy success was the Scottsboro Case, in which nine Black teenagers in Alabama were accused of gang-raping two white women. The case was tried before an all-White jury, and the nine youths were convicted. When the case was brought before the Supreme Court, with the NAACP submitting an amicus curiae brief, the Supreme Court ruled that Due Process had been denied and ordered the nine youths freed. It also gave notice that the racism of the state courts would come under the closest scrutiny. In Brown v. Board of Education, that scrutiny went beyond the courts to the practice of segregation itself.

Brown v. Board of Education was really a class action of five cases challenging racial segregation in the schools. The cases were first argued in the Court in December of 1952, and as the Justices heard the arguments for the cases, and gathered to confer on the issue, it seemed that stare decisis and Plessy v. Ferguson would hold.

The key man on the Court at the time was Justice Hugo Black, a Southerner from Alabama, who had dissented in case after case involving Negro rights, insisting that segregation in the schools was unconstitutional. He was joined in his position by Justice William O. Douglas, who had sided with him in many of his dissents, and it seemed that Brown v. Board of Education would be another case in which segregation would be re-affirmed and their dissents would be overruled.

Judgment on the case was deferred until December of 1953, because of the death of the Chief Justice, Fred M. Vinson, who was replaced by Earl Warren. With the coming of Warren, the Supreme Court entered a new era and Brown v. Board of Education became a harbinger of the new direction that the Court would be taking.

The defender of the segregation laws was the formidable John W. Davis, an experienced lawyer, who as Solicitor General of the United States, had argued many cases before the Court and was highly respected for his carefully written briefs and superb arguing skills. The lawyer for the NAACP was Thurgood Marshall, who would later join the Court as an Associate Justice.

In the tradition of Louis Brandeis, Marshall submitted detailed briefs to the Court, on the emotional and psychological effects on Black children of segregated education, which stamped them as inferior human beings, backed by the witness of professional psychologists that school segregation was a form of mental cruelty. Evidence was piled on evidence and statistic on statistic that segregated schools were inhumane and placed a social stigma on the Black children who were forced to rely on them for their education.

Another factor in the presentation of the case was the sociological writings of Gunnar Myrdal, a Swedish scholar who had excoriated in his writings the racism of American society in a book that had international repercussions in 1944. Richard Kluger thus describes his influence on the case: "It took a nervy Swedish economist to put down on paper what no white American had ever done - to document, analyze and excoriate the nation's continuing mistreatment and evident hatred of the Negro. Published in two volumes in 1944, Gunnar Myrdal's An American Dilemma was a milestone in sociology, cultural anthropology, and two-fisted investigative reporting.... its very size, range and completeness made its findings seem almost inarguable, and its understated but plainly detectable sense of moral revulsion caused civil rights groups to seize up the book as a bible and white-supremacists to put down its author as a meddling socialist and anti-American."

And in one bold statement in the book, he laid down the battle-plan that overturned Plessy v. Ferguson: "The whole system of discrimination in education in the South is not only tremendously harmful to. Negroes, but it is flagrantly illegal, and can easily be so proven in the courts.

The Supreme Court agreed, and in a unanimous decision, declared segregation unconstitutional in the schools, overturning a decision that had held for over half a century. It was the end of Court-Protected Racism, even though the battle for complete equality under the law still had to face the turmoil of the civil rights movement of the Sixties.

In 1883, the Civil Rights Act, passed by Congress in 1875, was struck down by the Supreme Court as unconstitutional; in 1954, Brown v. Board of Education prepared the way for the Civil Rights Act of 1964. Plessy v. Ferguson was no longer the law.

 

3. The Overturning of Lochner v. New York.

The concern of the Marshall and Taney Courts was the creation of an independent judiciary and the protection of property rights. After the Civil War, as the country began to expand economically, the concern for property rights was transferred to industry and commerce. In 1875, there began a series of Supreme Court decisions that equated corporations with persons, and looked upon any restrictions of business practices and the expansion of corporations, as the denial of Due Process guaranteed by the Constitution.

Economic growth and the accumulation of wealth was property and the Court struck down any laws of states and municipalities to regulate business practices, to protect the rights of workers or to better the conditions of employees of these vast business empires. These decisions of the Supreme Court became precedents in their own right and were appealed to under the principle of stare decisis, whenever new cases came before the Court or individuals sought redress from the courts in disputes with employers or with what were becoming known as giant trusts, corporation monopolies that served only the private interests of the corporations themselves.

The classic case in this series of Supreme Court decisions was Lochner v. New York, and it was notable for two things: it declared contractual rights of employers a right under the Constitution and it brought forth one of the most vigorous dissents in Supreme Court history, that of Oliver Wendell Holmes, newly appointed to the Court by President Theodore Roosevelt, and it marked the dissenting opinion as the chief means to chart new directions for the Court.

What had happened in the wake of the economic expansion that was sweeping the United States in the latter part of the 19th Century, was that the law had become the tool of the rich and prosperous, who were determined to protect their new-found prosperity at any cost. The greatest threat was from the labor movement, with its concern for the rights of workers, a reasonable wage, decent working conditions and a share in the benefits of the new prosperity. Lochner v. New York had become the ringing precedent of cases that had been mounting since the Civil War and as far as the legal community was concerned, Lochner v. New York would hold, since it summed up the mind of the Court on the matter of employer-employee relations. Liberty of Contract would hold in the face of every challenge for change.

In 1908, the state of Oregon passed a statute limiting working hours for women to ten hours a day, and one of the factory owners sued the state for violating the liberty of contract between employer and employee. The state argued that the parties to the labor contract were not equal and that the state could limit the terms of the contract to protect the weaker parties, the workers. To defend its right to protect the workers in the state, the State of Oregon asked Louis Brandeis, an attorney from Boston, noted for his knowledge of labor conditions, to argue the case before the Supreme Court.

In his brief, Brandeis devoted only two pages to legal citations, and more than a hundred to employment statistics. He cited one study after another on the effects of long working hours on the health and morals of working women. He advised the members of the Court on matters they knew little about and, in a unanimous decision, the Court, in substance, reversed Lochner v. New York.

The victory for workers was not total, and it would be several years before the rights of workers would become enshrined in the law, after Brandeis himself had become a member of the Supreme Court. But a new jurisprudence was underway and new constitutional rights were being recognized by the Court. Lochner v. New York was no longer the precedent in such matters and Muller v. Oregon marked a turn of the Court from property rights to personal rights. By 1941, when child labor was ended by United States v. Darby, the new direction was ready for new challenges. Brown v. Board of Education was just around the corner.

SUPREME COURT HISTORY

Two Overviews

I - THE PRECEDENTS

I - The Flowering of Court-Protected Capitalism.

(Culminating in Lochner v. New York)

II - The Dismantling of the 13th, 14th, & 15th Amendments.

(Culminating in Plessy v. Ferguson)

III - The Opening of the Question of the Unborn.

(Beginning with Roe v. Wade)

THE REVERSALS

I - The End of Court-Protected Capitalism.

(culminating in Muller v. Oregon)

II - The End of Court-Protected Racism.

(Culminating in Brown v. Board of Education)

III - The End of Court-Protected Abortion.

(Cases Yet Unnamed)

 

5 - THE JUDICIAL PROCESS: LITIGATION

LITIGATION, ACCORDING TO ITS VERY DEFINITION, is a judicial controversy, "a contest in a court of justice, for the purpose of enforcing a right." But in the American system of justice, it is something far more, particularly when the controversy is brought before the Supreme Court. "It is to these insulated nine men that the nation has increasingly brought its most vexing social and political problems. They come in the guise of private disputes between two litigating parties, but everybody understands that this is a legal fiction and merely a convenient political device. American society thus reduces its most troublesome controversies to the scope - and translates them into the language - of a lawsuit." (Kluger)

When a question like abortion becomes a national controversy, as it undoubtedly is, the controversy is not resolved in newspapers or in public debate. It is resolved only in the courts, since what is at issue are serious human problems and critical constitutional questions that for some reason have not been resolved. If it was a matter of winning a debate, the two sides could argue and go home, but there is more than a debate involved, there is a dispute; in this case, a dispute over the very meaning of law and the protection afforded by the law, and about constitutional rights that the law is supposed to uphold.

But cases adjudicated in the federal court system do more than settle public and private disputes. Litigation at that level is the instrument for the development and clarifying of constitutional issues. And for a very profound reason. The Constitution speaks only in very general terms- it lays down comprehensive principles and rights in which a host of others are contained as parts in a whole. In the course of time, to use Justice Brandeis expression, these comprehensive principles have to be aligned with concrete historical situations never anticipated by the framers of the Constitution. Litigation brings these concrete historical situations into the magnifying lens of the Constitution and, by legal reasoning, dissects their constitutional elements from the disputes in question and isolates the exact constitutional issue at stake.

It is only by such controversies that constitutional law develops, that new rights are recognized, that new individuals and new classes of individuals are brought under the protection of the law. And it is not only constitutional law that is clarified by such controversies. Principles of Common Law, the matrix of our constitutional law, are brought alive for specific persons and situations, such as the directive force of precedents, the binding force of custom, or the precise application of a certain axiom of law, such as no man should profit from his own crime, or gain some advantage from his own wrong.

Often it is a doubt about which principle applies, or which precedent is aligned with this fact? It is litigation that brings this out and it is the open forum of the judicial process that lays the specimen on the table and with the fine scalpel of legal argument separates the legal issue from the apparent.

"This vast and slowly moving body of precedents, statutes, and customs, shot through with the law's own distinct heritage of techniques and purposes, provides society with its organizing principle.. That scheme or structure of powers and rights, of duties and privileges, defines and orders the relation of man to man, and of man to the government. It is intended both to change and to remain constant: to change as new social needs and forces emerge and have their impact on the common customs of the community; to remain constant, in the sense that the community adheres to its ideal of law, which itself grows and develops as it is tested and applied in situation after situation." (Rostow)

It is undoubtedly true, that if there had been no litigation, there would have been no Plessy v. Ferguson, but it is just as true, that if there had been no further litigation, there would have been no Brown v. Board of Education. Sometimes such litigation works in an opposite direction, or on two levels at once. If there had been no Dred Scott v. Sandford, there would nave been no Dred Scott Decision, with its graphic and almost obscene legal defense of racism. The litigation and its tragic consequence only served to highlight the human and moral issue involved in the slavery question, and made its own contribution to the abolition of slavery.

Roe v. Wade and its sister decisions can serve something of the same purpose. The complete failure of these decisions, like many leading up to Dred Scott and Plessy v. Ferguson, to face the real constitutional issue involved, in this case, the violent destruction of unborn life, only brings that issue, in all its human drama, more and more into focus, until the judiciary is forced to examine the other side of the controversy.

It is that other side that has not been heard in the courts, that has not been examined with the scalpel of legal reasoning, that has been ignored in the adjudication of the case. "Judges inevitably make law, case by case, and do not merely find it in the skies or in the books.... They fit the past to the present.... drawing their insights and their knowledge of public affairs to separate the essential from the nonessential, the ultimate from the superficial, in the interpretation of statutes and precedents, and.... clashes.... (over) the Constitution." (Rostow)

If, then, judges do interpret and apply the law case by case, it is by actual litigation that cases are brought before them, that disputes are brought into the purview of the law and that specific legal disputes are decided. And judges apparently learn by such disputes and by facing new cases embodying the same issue. Muller v. Oregon was a dispute almost identical with Lochner v. New York, yet the judges came to a different decision, based on the facts presented, and the legal reasoning on those facts. United States v. Darby concerned a dispute almost identical with Hammer v. Dagenhart, but the judges came to a different conclusion and reversed Hammer v. Dagenhart.

What is critically important in all of these cases, is the preparation of the case, the careful research that goes into that preparation, and the masterful marshalling of the facts before the judges in the actual presentation of the case. That is what Louis Brandeis meant by educating the court, and for that the lawyer has to be more than a legal hack, he must be scholar and jurist, historian and philosopher, a master of the written and spoken word, and a rhetorician of unparalleled skill. Judges have intellects, and as Justice Cardozo has shown, in arguing a case, form is as important as substance.

In the litigation of a suit, judgment, if it is the farseeing judgment of a magisterial mind, looks not only to precedents, but to the consequences of a legal judgment. A legal issue of its very nature is not concerned merely with the present, it looks to the future. It is the seed for future decisions and traces a path that leads somewhere. "There can be no wisdom in the choice of a path unless we know where it will lead." To deny a worker his rights, a decent livelihood, a just wage to support a life of more than dire poverty, in the name of the contractual rights of the employer, is to trace a path to disaster in the future. To institutionalize racism, as did Plessy v. Ferguson and the decisions leading up to it, because of a personal bias, is to plot a sure path to the lynchings and injustice to Black Americans that characterized communities where Black citizens resided. It is in litigation that such issues are brought out, if that litigation is more than just a contest between two clever lawyers.

The judge has "the duty... of staking the path along new courses, of marking a new point of departure from which others, who come after him will set out upon their journey. If you ask how he is to know when one interest out weighs another, I can only answer he must get his knowledge... from experience and study and reflection..." It is the work of litigation to give him the material for study and reflection and that is the purpose of oral arguments and legal briefs. Litigation is not just a matter of engaging in a debate, it is. a process of judgment, of judgment upon facts, it is the weighing of facts. The purpose of the judgment is to establish a rule of law, but a rule of law based on this particular body of facts. Ex facto Jus oritur. The work of litigation is to get at the facts.

There are three things that happen in litigation that cannot happen if a dispute is not brought before the courts, and will always remain a matter of doubt, juridically, if the litigation does not take place. All three are described by Justice Cardozo and they are the first steps taken on the part of the court, if the dispute it to be resolved as a legal question: "The first things he (the judge) does is to compare the case with the precedents." That comparison is hugely dependent upon the way the case is presented in the oral arguments and written briefs. If the wrong precedents are linked to the case, a true judgment cannot take place and it is the work of the lawyer to demonstrate to the court the legal ancestry of the case, that progression of precedents, or that lone precedent, that embody the principle of law pertinent to the case before the court. This also involves the demolishing of links with precedents which do not apply. Lincoln's dissection of Chief Justice Roger Taney's arguments in the Dred Scott Decision is a powerful example of such legal reasoning, as are the cases that Daniel Webster argued before the Court.

A case cannot be properly adjudicated unless the applicable precedents emerge from the legal debate, and in this no oratorical slight-of-hand will ultimately work. The true precedent may be hidden and a wrong precedent may be chosen, but this is because of the complexity of the case and the welter of precedents, not from the cleverness of lawyers in diverting the attention of the court. It is only when oratorical skill is joined to a masterly grasp of the facts and compelling reasoning on those facts that the court is won over.

After determining the precedent, "the problem which confronts the judge...is a twofold one: he must extract from the precedents the underlying principle, the ratio decidendi; he must then determine the path or direction along which the principle is to move and develop, if it is not to wither and die."

"To wither and die". A life-giving precedent can wither and die in the judicial process if it is not known, if it remains hidden in the presentation of the case, if it is concealed under a legal cover that hides the true nature of a dispute. In Dred Scott, the legal cover was property rights, and with that as the precedent, the Missouri Compromise was declared unconstitutional, which had outlawed the spread of slavery to new Territories. In Muller v. Oregon, it was liberty of contract, which declared any demands made by workers in their employment contracts unconstitutional, as well as any state regulating of employer-employee relations. In Roe v. Wade, the legal cover is the right to privacy, which declares unconstitutional any denial to a woman of access to an abortion. The principle extracted from the case was the right to privacy, based on a flawed presentation of the facts of the case. The judges were not properly informed.

What the defending lawyers should have demonstrated, in defending the abortion laws, was the progression of laws protecting human rights, the precedents in this progression, and the underlying principle of these precedents. That underlying principle is a complex one, applied to new persons and new human conditions in the history of constitutional law, taking on a new legal name and a new legal face, as new violations of human rights emerge in human history. At one time, it is "The Laws and ordinances Newly-made for the Good of the Indies and the Preservation of the Indians". At another, it is the "Emancipation Proclamation", given constitutional force by the "13th, 14th, and 15th Amendments". At still another time, it is "United States ex. rel. Standing Bear v. Crook, 25 F.Cas. 695 (C.C.D.Neb) (No. 14 891).

But even though it could not be named, it could be identified by the very nature of the cases, from the laws framed or the decisions handed down. And the progression showed a development of law, a growth of the law, from the condition of adulthood (Dred Scott, Standing Bear, Woman Suffrage, Brown v. Board of Education) to the condition of childhood (Child Labor Laws, United States v. Darby, etc.), with the directive force of the precedent leading to the condition of the unborn. Expressed in legal terms, the law showed a progression from the autonomous moment of Adulthood, to the pedagogical moment of Childhood, to the embryonic moment of the unborn. A skillful lawyer would have led the Justices through this progression, for this is what legal reasoning is all about.

And it is this kind of reasoning that applies precedents to new applications of the law.

"Every precedent", wrote Benjamin Cardozo, "has a directive force for future cases of the same or similar nature." That is the basis of stare decisis. But stare decisis does not work automatically, in fact it does not work at all until the applicable precedent emerges from legal debate, is hammered out on the anvil of legal reasoning in the "legal smithy" of litigation. And this is done on a case to case basis, with an important reminder from judges. "The rules and principles of case law have never been treated as final truths. But as working hypotheses, continually re-tested in those great laboratories of the law, the courts." At present the working hypotheses on Roe v. Wade is that abortion falls under the constitutional right to privacy guaranteed and protected by the Fourteenth Amendment. It is also a working hypotheses, held to on a case to case basis, that the word person as used in the Fourteenth Amendment does not include the unborn, only if the contrary cannot be demonstrated by some future case.

Roger Brook, Taney, one of the most knowledgeable and astute authorities on constitutional law, was certain that "the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration (of Independence) .... the negro race.... (was) excluded from civilized Governments ... and doomed to slavery ... altogether unfit to associate with the white race and...had no rights which the white man was bound to respect." Abraham Lincoln disagreed and Dred Scott was assigned to the ash-heap of constitutional history.

John W. Davis, considered by many to be the most experienced advocate to appear before the Supreme Court after Daniel Webster, who had argued more than 250 cases before the Court, was certain that Plessy v. Ferguson, with its doctrine of separate, but equal would hold, and "never doubted that he would successfully defend the constitutionality of segregated schools before the Supreme Court." He forgot that every precedent is only a working hypothesis, waiting to be proved false by a new examination of the question.

"Every new case is an experiment", an experiment in the laboratory of the law, a laboratory which, in Justice Cardozo's words, has become a "wilderness of precedents", where the guiding principles of Common Law have been forsaken or unknown in clearing a path through these precedents. As the Brandeis Brief has shown, a new path can be forged, especially when inhuman and barbaric practices have been given the sanction of law, under legal covers that masquerade as rights, which everyone recognizes are not rights, but torts, the twisting of the law to conceal the commission of a harmful and destructive act. An ancient axiom of Common Law recognized that laws can be twisted to serve private and personal ends that are contrary to the law, whether sanctioned by judges or legislators. It reads tortura legum pessima, and hints by its very wording that the stench of the tortured law will bring about its own retribution and such a revulsion for the destructive act that the law itself will arise, in a multitude of decisions, to twist the metal of the law back into shape in the white-hot flame of legal judgment.

 

6 - THE JUDCIAL PROCESS: PRINCIPLES

IN A LEGAL CHALLENGE TO Roe v. wade, the dispute is not over known constitutional principles or the application of existing laws to the question of abortion; it is the growth of the law into a new and uncharted legal territory, the aligning of a new set of facts to ancient and age-old principles, to established precedents in which these principles are embodied, and the linking of this new legal offspring to its legitimate legal ancestors.

The link that was made in the Roe v. Wade decision is with abortion laws, the formation of those laws, the purpose of those laws, the obsolescence of those laws. And a judgment was made, based on invalid historical assumptions and erroneous medical information, that those laws were purely medical matters, due to the primitive and unsafe surgical methods of the time, and that therefore the judgment in the matter is a medical one, and that it is for the physician to decide whether an abortion is called for in any particular case.

The principle of Common Law appealed to in the matter of the abortion laws was cessante ratione legis cessat et ipsa lex (2 BI. Comm. 390, 391; 4 Co. 38). What were completely ignored were principles in Common Law bearing directly on the question of the unborn. What was provided here was a legal cover for abortion, completely ignoring, not only the real intent of the abortion laws, but any principles of Common Law pertaining to the unborn. This tactic follows exactly the pattern of Dred Scott, Plessy v. Ferguson and Lochner v. New York. Not only were the wrong principles appealed to justify abortion, a very important principle of Common Law was violated, indicating either the lack of legal knowledge on the part of those who submitted the brief to the Supreme Court, or their malicious will and intent.

The principle violated was this one: "Scire legis non hoc est verba eorum tenere, sed vim ac potestatem Dig. 1,3,17: 1 Kent, Comm. 462): To know the laws is not to memorize their letter, but to grasp their force and meaning. Those who used cessante with such obvious ignorance or deliberate deception, simply to bolster their argument, did not realize that the law itself turns on its unskillful practitioners, and turns their own arguments against them.

The other link that was made in Roe v. Wade was the link of that case with Griswold v. Connecticut, from the surface similarity of the two cases. Griswold v. Connecticut was decided on the basis of the privacy of sexual intimacy between a man and a woman, a sacred privacy in which government and law have no place, no jurisdiction and no authority. It is too intimate and private a sphere and the Bill of Rights, with its catalogue of personal rights and immunities, was included in the Constitution to ensure and guarantee that government would not intrude into the personal and private matters of a citizen. The surface resemblance between the two cases is that both were associated with the matters of human reproduction. But the similarity ended there.

Similarities are not certainties, and the conclusions that are reached by surface similarities are legal fictions, useful as suppositions, but not as valid legal conclusions. "I have said that there is a certainty that is genuine and a certainty that is illusory, a symmetry that is worth attaining and a symmetry to be shunned.... Particular precedents are carried to conclusions that are thought to be their logical development.... Certainty is lost if we view the law in shreds and patches, not steadily and whole, with a sweep that reaches the horizon. Often a spurious consistency is preserved by artificial and unreal distinctions." (Cardozo)

What results are deformities, deformities that are held on the basis of a "spurious consistency", a consistency that applies real principles to false or doubtful premises. "Enactments must be universal (possessing a certain consistency), but actions are concerned with particulars. Legal judgement is about particular actions, not with logical consistency. And the warning of experienced judges is given: "Existing rules and principles can give us our present location, our bearings, our latitude and longitude (the issue is about abortion), but the law must be ready for the morrow (for the situation that faces us now). It must have a principle of growth."

That principle is the totality of the law, a totality that includes the genesis, the growth, the function, and the end of law, and the ability of the advocate to build his case on that genesis, that growth, that function, and that end. Again, judges have intellects and a thinking mind looks to synthesis, to beginnings and ends, and to the sweep of a mind that links beginnings to ends, can make distinctions that are more than oratorical devices and that can draw conclusions based on the living evidence of verifiable facts.

Is that why oral arguments seldom win cases, but often lose them? This lack of respect for the intellects of judges and their respect for the reasoning process? "It is these generalities and abstractions that give direction to legal thinking, that sway the minds of judges, that determine, when the balance wavers, the outcome of the doubtful lawsuit. Implicit in every decision where the question is (still on the table) is a philosophy of the origin and aim of law, a philosophy which is in truth the final arbiter.

It is intellect that appeals to intellect, not logic to logic or argument to argument. A mind that knows where it is coming from and where it is going, that knows the origin of a precedent in the fabric of history and can trace that precedent from concrete situation to embodiment in law, and from further violations of that precedent to a further embodiment in another law, and indicate also where that precedent is going, from the directive force of the precedent itself and the history of its progression through time.

In the question of abortion, there is simply no other way to argue the case, since there are no precedents relating directly to abortion.. The issue of abortion has to be shown as part of a larger canvas, just as slavery and segregation had to be shown as part of the securing of the human rights laid down in the Constitution for every class of human being. Neither Negro nor slave is mentioned in the Constitution and in the matter of the Black African, one had to choose between Chief Justice Taney's interpretation of the Declaration of independence and Abraham Lincoln's. The Constitution is silent. What was the intent of the Founders?

Taney: "Neither the Black man nor his descendants were intended to be included in the general words of the Declaration of independence."

Lincoln: "The authors of (the Declaration of Independence)… intended to include all men, (and) they defined.... in what respects they did consider all men created equal - equal with 'certain inalienable rights'. This they said, and this they meant.'

The Constitution is likewise silent on whether the word person used in the Bill of Rights includes the unborn.

Justice Blackmun: "The word person as used in the Fourteenth Amendment does not include the unborn."

Contrary Argument: "The Declaration does not say that all men are born equal, it says all men are created equal. All human beings, of whatever race, color, class or human condition are included in the Declaration and in the Bill of Rights. The Declaration and the Constitution admit of no exception."

Conclusion from Taney: "The Black Man has no rights which the white man is bound to respect.... He may lawfully be reduced to slavery...and treated as an ordinary article of traffic and merchandise."

Conclusion from Lincoln: "The Negro is... entitled to all the natural rights enunciated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness. I hold that he is as much entitled to these as the white man."

Conclusion from Blackmun: "Under the Right to Privacy, guaranteed by the Fourteenth Amendment, a woman has a right to terminate the life of the unborn. The unborn have no human status and therefore no legal status that the law has to respect."

Contrary Conclusion: "The unborn is a true human being in utero and is entitled to all the rights, privileges and immunities guaranteed by the Bill of Rights to every citizen of the United States."

With the passage of time, considering the barbarism and inhumanity of slavery, there was no doubt whose reasoning and conclusions constitutional law would follow, and the Lincoln Memorial in Washington is the living monument to Lincoln's interpretation of the Constitution.

With the passage of time, considering the barbarism and inhumanity of abortion, there is no doubt whose reasoning and conclusions constitutional law will follow.

"It is when the colors do not match, when the references in the index fall, when there is no decisive precedent, that the serious business of the judge begins."

The first precedent to recognize in the abortion dispute is that there is no precedent. Until Roe v. Wade, the unborn had never entered the legal arena, and Roe v. Wade is more a hypothesis than a precedent. In Newman's words, "An hypothesis to account for a difficulty." The difficulty was the universality and inflexibility of abortion laws, the common instinct and conviction of every nation and people, the communitas orbis, in condemning the destruction of unborn life, of infants in the womb, of the proles in utero, of the most sacred trust committed to human beings. There was no doubt about their universality and inflexibility, they could only be attacked on the basis of their incompleteness as legal doctrine, due to the primitive state of medical science. That medical science and surgical skills had developed to the point where the child in the womb of its mother could be dismembered with no danger to the health and safety of the mother, should be considered an advance of medical science, did not appear incongruous to the framers of Roe v. Wade. It is that incongruity that will erode whatever legal reasoning brought forth the Roe v. Wade decision in the first place.

The serious business of identifying the decisive precedent in the abortion issue has scarcely begun and it will take a greater conjunction of cases than Roe, Doe and Casey to probe these cases to their foundation. When that universal element starts to appear, it will be more than an hypothesis to account for a difficulty. It will be the flowering of our Common Law to face a critical human problem and the establishment of constitutional principles as significant as the abolition of slavery and Brown v. Board of Education. Somewhere waiting in the wings is the architect and engineer of that significant development. One hundred years from now the public well may wonder what the furor over the issue was all about. Like Dred Scott, Plessy v. Ferguson and Hammer v. Dagenhart, the issue will long have been laid to rest. And a decision yet unnamed will join United States ex rel. Standing Bear v. Crook as one of the oddities of constitutional history.

 

7 - THE JUDICIAL PROCESS: PRECEDENT: STARE -DECISIS

Precedent is that collection of particular legal decisions giving concrete solutions to specific problems brought up by litigation. It is the particular application of law to concrete historical circumstances, providing a measuring rod for future decisions. It is the juridical memory of a people, enshrining the application of law to changing times and circumstances, embodying principles of law, and juridical moments given the sanction and protection of law.

Every legal decision embodies legal principles, and precedent is a concrete example of how law is applied in particular circumstances. Precedent is not the mere repetition of previously enacted laws, but embodies principles of law applied to new circumstances, creating new laws.

Stare decisis means literally to stand by decided cases, to be consistent in judgment, to follow a uniform rule, not to be arbitrary in judging. Justice Cardozo indicates why: "Back of the precedents are the basic juridical conceptions which are the postulates of legal reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin."

Planned Parenthood v. Casey appealed to stare decisis in refusing to overturn Roe v. Wade because the Justices saw in Casey no valid constitutional objections to Roe v. Wade. This is perfectly understandable, since Casey was not an assault on the constitutionality of abortion, or of Roe v. Wade. Casey was a dispute, not over abortion itself, but over restrictions on access to abortion on the part of the State of Pennsylvania. There was not presented in the defense of these state restrictions any legal challenge to abortion itself. The decision in Casey, in fact, upheld some of those restrictions. The issue of the constitutionality of abortion itself, as the termination of unborn life, was not faced at all. In fact, there has been no challenge to the constitutionality of Roe v. Wade since the decision was handed down in January of 1973.

What, then, is being upheld in holding to the principle of stare decisis in abortion cases before the Supreme Court? A pregnant woman's right to access to an abortion, under the constitutional right to privacy, and the doctor's right to use his surgical skills, when so requested, to terminate the pregnancy. Stare decisis will hold in all cases coming before the Court until there is new data presented to the Court demonstrating that the right to privacy was wrongly applied or that the surgical operation called abortion is not a medical service, but something quite different.

Obviously, for any litigation to succeed, the linking of abortion with the right to privacy must be broken, and some other precedent, or some other legal principle, must be linked to the practice of abortion. What has to be demonstrated, on sound constitutional principles, is that the right to privacy is a sham and a legal cover for some other action, abhorrent to the law.

Stare decisis in Roe v. Wade is on very shaky ground. Twice, in Akron and Thornburgh, there was almost a turnaround, with some very ambiguous juggling of positions. The position of Justice Sandra Day O'Connor was especially noteworthy. In Akron, she joined the dissent and concluded: "The Roe framework is clearly on a collision course with itself."

She argued that the state's legitimate interests in abortion, protecting the mother's health and potential life, were present throughout the pregnancy. "Potential life is no less potential in the first weeks of pregnancy than it is at viability and afterward.... The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward." She seemed to hold the view that states may regulate abortion throughout the entire period of pregnancy, an obvious weakening of Roe v.. Wade.

In Thornburgh, four of the Justices, including Sandra O'Connor and Chief Justice Burger, dissented and seemed willing to review and perhaps overturn Roe v. Wade. Chief Justice Burger, apparently having second thoughts on the whole issue, concluded his opinion calling for a re-examination of Roe v. Wade.

A third case, Webster v. Reproductive Health Services, saw a strange split in the Justices, with separate opinions on the case being written by several of the Justices, Chief Justice Burger writing two. What was especially significant was Sandra Day O'Connor's suggestion on Roe v. Wade: "When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time to re-examine Roe. And to do so carefully."

In Casey, in 1992, the Court chose to uphold Roe v. Wade under stare decisis, because it deserved respect as a major Supreme Court decision. Respect for precedent, it was felt, was a critical factor in maintaining respect for the Court and preserving the legitimacy of judicial power. "A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today."

The "existing circumstances" were the public relations campaign and political pressure waged against Roe v. Wade and the Court was determined not to yield to such pressure and to proclaim the independence of the judiciary. The wording of the statement was a subtle invitation to the opponents of abortion to express their opposition to abortion through the courts. The Court would follow its own procedures and hold to stare decisis.

A recent commentator on the abortion cases drew this conclusion from the actions of the Court in these cases: "The Supreme Court has never felt itself bound absolutely by the principle of stare decisis, but many Justices have counseled against creating the impression that constitutional interpretation tacks with the political wind. On the other hand, abortion has become such a thoroughly politicized issue since Roe v. Wade that the Justices may decide that the Court has nothing to lose by returning to the days when abortion was a matter for legislatures.'

These interesting twists in the abortion cases only highlight the fact that precedent is only a working hypothesis, a working hypothesis that is held to only on a case-to-case basis. Any future case could overturn it. The Court in substance is inviting a constitutional challenge to Roe v. Wade, but is making it clear, in Casey, that until that constitutionality is challenged in the courts and the unconstitutionality of its previous decision demonstrated, stare decisis in the matter of abortion will hold. It is for the opponents of abortion to take the next step.

For a complete look at stare decisis from the point of view of the Court, I have included in an Appendix a talk on the subject given by Justice William O. Douglas in 1949. More could be said on the subject, including precedents hidden in Common law which have a bearing on the unborn. But I would like to emphasize here what I have said before about a precedent being merely a hypothesis, a working hypothesis to explain the facts of a case. It is held to as long as it covers all the facts, or seems to, and when it is shown to no longer cover the facts, it is dropped. There are so many holes in Roe v. Wade, and I have pointed out some of them, that the holding to that decision is very weak and it would not take much to topple it. I find it hard to understand why it has not been done before.

 

8 - THE JUDICIAL PROCESS: Facts.

It was Louis Brandeis who made facts the basis for a new kind of law and for a new way of doing law. Everyone recognizes that he was the master and the originator of this kind of litigation and it came with his deep dissatisfaction with the law as practiced at his time. He saw the courts ineffective in upholding claims of simple justice and coming more and more to serve only the interests of the rich and powerful, and he saw that equality under the law had become non-existent, the law failing to serve the needs of the common citizen. He made it his work to make himself thoroughly familiar with the facts of a case, not merely with the law. In doing so, he turned the practice of law and of the courts in a totally new direction: the concrete world in which people had to live.

He recognized that the facts of a case are the unknown quantity in the judicial process, and it is the work of litigation to bring those facts before the court. Litigation takes place because the facts of a particular dispute are not known to the court, and the courtroom is to the legal process what the test tube, the microscope and the telescope are to science: it is the laboratory where the facts are tested, weighed and measured by judicial judgment.

In Roe v. wade, the facts of abortion, the methods and procedures by which unborn life is destroyed did not enter into the case. Those facts were strenuously excluded from the presentation of the case. What was in dispute was the binding force of abortion laws, the detriment that a continuing pregnancy might have on a woman wanting an abortion, the distressful life that might be imposed on women if access to abortion was denied, and her medical and physical health that might be taxed by child care. The facts presented claimed, and this was the point of the legal dispute, that women were the victims of abortion laws and therefore those laws should be abrogated.

As Brandeis has shown in the Brandeis Brief, which is the classic example of this method, the facts presented first are the Court's own ruling, and then bringing in such a thorough and extensive knowledge of the facts of abortion, genetics, embryology, and a mass of sociological data, to show that the practice of abortion simply does not meet the criteria which the Court has set for itself in the matter of the unborn.

He builds his case on the court's own rulings, which in Roe v. wade are numerous, detailed, moving in several directions and bringing the Court to consider his data in the light of its own rulings. He convinces the Court, on the basis of its own Principles, that stare decisis does not hold in this case, and that its previous decision should be overturned.

In the presentation of his case, Brandeis depended upon the "logic of facts", the facts of this particular case, and with those facts, he reasoned from inside the case, to bring the Justices to a vastly different conclusion than their previous decision.

For the Supreme Court, since before Brandeis' time, the problem has been one of continuity and change, and the Court has never come up with a clear solution to that problem. Today, in the light of the massive human problems facing the country and the court, especially those brought on by advanced technology serving almost every human need, there is need for something resembling a new Brandeis Brief in facing the complex and intertwining issues brought on by technological development. Like the corporation empires and business trusts in Brandeis' time, technology in medicine, scientific research, banking, business, communications, journalism, education, social work and government are appealing to a laizzez faire doctrine in carrying out their schemes and their carefully worked-out agendas, and they are quite willing to use the courts to secure their autonomy and liberty of action.

In Brandeis' time, it was property rights and liberty of contract that had to be aligned with existing laws, today it is professional rights and the right of personal autonomy that burst into the courts and into the public consciousness, demanding immediate solutions to problems and disputes for which there are no apparent precedents and no pertinent statutes or underlying principles. What is needed is a new kind of jurisprudence and an advance of common law into a new set of relations and interacting rights, and some juridical genius like Coke or Blackstone to interpret and monitor the culture wars that deluge the courts with increasing persistency. Brandeis' achievement is something of a model and his concept of the law "as a living, ever-changing organism", the stabilizing force in a changing society was the major step forward in constitutional interpretation since John Marshall, and he is considered by many "the greatest of John Marshall's successors on the Supreme Court".

In his battle for justice in the marketplace and for protecting the common citizen from exploitation by business monopolies, he stripped the insurance business of its mysteries, forced a utility company to put public need before profits and brought about changes in the policies of large corporations that were aimed only at quick profits. His most intense debate was with business monopolies and banking institutions whose practices were cheating the public and claiming that these practices were essential for economic stability.

Large corporations, he said, "with their poor business methods would only have earned a moderate living had they not killed competition. Without this unfairness in business, officials (of these companies) would have starved to death ….When you increase your business to a great extent and the multitude of problems with its growth, you will find, in the first place, that the man at the head has a diminishing knowledge of the facts, and in the second place, a diminishing opportunity for exercising careful judgment upon them."

In a conversation with a banker, an associate of J.P. Morgan whose financial mismanagement of the New Haven Railroad caused its collapse and financial losses to thousands of people in New England, the banker challenged Brandeis' view that large amounts of capital in the hands of bankers endangered the country. "Yes, I do think it is dangerous, highly dangerous", Brandeis told him,"It hampers the freedom of the individual.... The only way we are going to work out our problems in this country is to have the individual free, not free to do unlicensed things, but free to work and to trade, without fear of some gigantic power threatening to engulf him every moment, whether that power be monopoly in oil or in credit."

It was Brandeis' ability to have facts at his fingertips, the facts underpinning any issue that he had to face, that made him a master of legal science and a legal engineer of unparalleled ability. When that ability turned to issues of constitutional law, he saw the issues with startling accuracy.

One of his most famous cases was as counsel for Collier's Weekly, which had published an article exposing corrupt practices of the Department. of the Interior, in which an official of the department had used his position to amass profits for the Morgan-Guggenheim financial syndicate, which he later joined after resigning from public office.

Retained by Collier's to present their case to a congressional committee, "Brandeis arrived at New York's Harvard Club on January 12, 1911; he emerged two weeks later. During that time he sat alone in his bedroom, surrounded by mountainous stacks of books, documents, memoranda, and letters. Occasionally, he would journey to the dining room... then he would return to his room and the period of isolated study that was designed to familiarize his completely with the workings of the Department of the Interior, conservation, public land laws, the vocabulary of land management and the geography of Alaska. When he felt that he had mastered names, dates, figures, and concepts, he took the train down to Washington."

In his battle for justice, for the worker and the common citizen, whose rights were trampled upon by unscrupulous business practices and special interests groups, Louis Brandeis explained his determination: "There is nothing for us to do but to follow the trail of evil wherever it extends…In the fight against special interest we shall receive no quarter and may as well make up our minds to give none. It is a hard fight."

With an array of facts in his hands and in his head, he had no doubt about the outcome of his efforts. In a letter explaining the downfall of the New Haven Railroad and the man who was responsible for the collapse, he made this insightful comment: "(He) was a masterful man, resourceful, courageous, broad of view. He fired the imagination of New England, but being oblique of vision, merely distorted its judgment and silenced its conscience. For a while he triumphed with impunity over laws human and divine, but as he was obsessed with the delusion that two and two make five, he fell at last a victim of the relentless rules of arithmetic.... Arithmetic is the first of sciences and the mother of safety."

In his 580 opinions as a Justice of the Supreme Court, Brandeis, together with Holmes and Cardozo, blazed a new direction for the Court. He was constantly concerned about the rigidity of legal thinking and its failure to consult the facts when promulgating statutes or deciding cases. Statutes should represent solutions to factual problems and legal judgments should consult the facts of a case before judgment is given. It was the failure to do this, in the judgment of Louis Brandeis, that brought law into disrepute and the courts ineffective in the protection Of individual rights.

It is clear to anyone who has studied the issue, that in the question of abortion, as exemplified in Roe v. Wade, factual material has been meagre, if not non-existent. The Brandeis equivalent of corporation trusts and special interest monopolies have deluged the field of law with information scarcely factual, and it is clear, in Brandeis’ words that it will be a "hard fight."

In returning the judicial process to passing judgment on the consequences of certain actions, whether personal or corporate, economic or legal, the work and writings of Louis Brandeis are a rich mine of principles and precedents, as well as models of legal reasoning on a multitude of concrete problems. His shattering of the supremacy of contractual rights as an absolute in constitutional disputes, provides a model for exposing the legal cover given to abortion by the claim of a right to privacy, and then make that legal cover the basis for an appeal to stare decisis. It is this vicious circle that, is at work in the abortion controversy, and the Brandeis Brief and the arithmetic of his cases provide the legal ammunition and the legal tactics to break the circle.

 

9 - THE JUDICIAL PROCESS: RIGHTS

THE BASIC PREMISE OF AMERICAN LAW is that the rights guaranteed by the Constitution and protected by the courts are not given by government or law. They are imbedded in the very fabric of the human person, and are based on the fact that one is a human being. The human person is the subject of rights, and those rights are the object of law. The corollary is also true: the law does not bestow those rights, and it cannot annul or abrogate them. The purpose of the judiciary is to assure and secure these rights for every person subject to the law.

No one has expressed this more clearly than Justice William 0. Douglas:

"The basic premise on which the Declaration of independence rests is that men are endowed by their Creator with certain unalienable Rights. That means that the source of these rights of man is God, not government. When the state adopts measures protective of civil liberties, it does not confer rights. it merely confirms rights .....

"The Declaration of independence states: That to SECURE these rights, Governments are instituted among Men"…To secure means to safeguard… The rights and liberties secured were those which American citizens already had. Government merely underwrote them.

"Therein lies the basic difference between democratic and totalitarian governments. In fascist, communist, and monarchical governments, government is the source of rights, government grants rights; government withdraws rights. In our scheme of things, the rights of men are unalienable. They come from the Creator, not from a president, a legislature, a court."

This is the basic premise of all American law and of all, constitutional government: rights flow from the inviolability of the human person, and is not even based on citizenship. By the very fact that one is a human being, one has rights under the law. The purpose of the judiciary is to recognize, secure and safeguard the rights of all human beings dwelling in the confines of the United States.

Some of those rights, the basic ones, and those that the Founders of the Republic thought were in jeopardy under the laws of England, were enumerated in the Bill of Rights. But the 9th Amendment made it clear that the rights assured by the Constitution were not limited to those listed in the Bill of Rights: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."

The constitutional question in Roe v. Wade is: are there certain rights or a certain right embodying all others, not enumerated in the Constitution, which apply to the unborn? Are the rights of the unborn included in some foundational right which is the source of all others? And if so, how, can it be identified? There are parallels in constitutional history.

How could Dred Scott, by a solemn decree of the Court, declare that Black Africans had no rights under the law, and that decree be reversed by constitutional amendment? How could the series of decisions leading up to Lochner v. New York declare by the same solemn decree that contractual rights of corporations were rights under the Constitution, and that declaration just as solemnly denied by Muller v. Oregon and Bunting v. Oregon? How could Plessy v. Ferguson solemnly decree that separate, but equal facilities for Blacks and Whites were constitutional, and Brown v. Board of Education just as solemnly declare that this arrangement violated the Constitution?

The answer lies in the simple but complex fact that, whatever manner in which it is expressed, the Supreme Court recognizes that rights are inherent in the very fact of being human and that in a dispute, it is not always clear whose rights are being violated or where the burden of proof points. In the case of the unborn, the exact human status of the unborn has to be defined, as well as that basic right which includes the human being qui in utero est. It is quite possible that until Roe v. Wade, this right remained imbedded in the bedrock of the Constitution, only to emerge when that right was violated by the legalizing of abortion. One of the purposes of the judicial process is to isolate, identify and define rights pertaining to a specific case, a non-enumerated right which had not been recognized or identified before.

It was not clear, for instance, before several cases came before the Supreme Court, that the rights of children, violated by child labor and other abuses, could be separated from the rights of parents. Parents, who had depended upon their children for income, provided shelter and sustenance, with the expectation of a continuing support from their children. This was the very basis of an older economy. Hammer v. Dagenhart concluded that parents had a right to this expectation and that the issue of child labor and the rights of the child did not enter into the issue. That conclusion was denied by New York v. Darby twenty-three years later.

The question here was, whose rights had first priority, or which right was a legal fiction? The issue was a long time surfacing and it surfaced because of the dissents of Justices like Oliver Wendell Holmes, who saw a juridical vacuum for which there was no precedent. The objections of parents and employers was vociferous. "The wages and services of children over which parents had previously held complete control in exchange for maintenance were now being denied. Instead, parents were obliged to support their children."

Children had rights under the law and parents were obligated to respect those rights. The pedagogical moment had entered the legal arena and a new development in constitutional law bad taken place, distinct from and in tension with the autonomous moment of adulthood. Parents did not exercise dominion over their children, they held the dominion of the children in trust. Any dominion exercised by the parents must be done in loco prolis, for the benefit of the children. Under American law, children were not the possessions of their parents. That principle of constitutional law emerged only with Hammer v. Dagenhart and Unit. St v. Darby and if child labor had never existed, the rights of children might never have entered the domain of law or the purview of the courts.

Litigation creates precedents defining and safeguarding rights. Without litigation, rights are violated by those possessing power over others, whether this is parental power, economic power, physical power, military power or legal power. The judiciary exists to protect citizens even from governmental power, both federal and local, and the government has its own lawyer, the Solicitor General, to argue its own cases before the Supreme Court. One of the purposes of the United States Constitution was to protect citizens from the encroachments of governmental power, well described by James Madison: "In Europe, liberty is granted by power, under our system, power is granted by liberty."

The foundational principle of constitutional law, which Roe v. Wade could well bring once again into focus, is that rights do not come from the government of the United States, from the Congress, or from the Supreme Court. Every human being is born and conceived free; liberty is the state in which and into which a human being is conceived and this liberty is of the very essence of what it means to be human.

Power, any power that is exercised over us has been granted by our own volition; power is granted by liberty. The child, conceived into a condition of freedom, has not granted to anyone power over his person, except those powers already possessed by the government under which he is conceived. Freedom and personal liberty surrounds the unborn child as surely as does the amniotic fluid in which he is submerged. A child is conceived into freedom. It is not something he acquires or grows into.

The principle of Common Law, placed squarely by Sir William Blackstone at the very beginning of his Commentaries on English Law, joined by an unbreakable bond with rights that are absolute, personal security and personal liberty, is this one: "Qui in utero est pro jam nato habetur, quoties de ejus commodo quaeritur." It is as if he saw with prophetic certainty that those secure in their own personal liberty, unmindful of their own beginnings, might take advantage of the helpless condition of the unborn. Such principles of Common Law, mined from the experience of our forebears, are cast aside or disregarded at our own peril.

If Roe v. Wade is to be successfully challenged, what must be challenged is the whole basis of the majority opinion. It is that decision that is flawed from beginning to end, and the challenge must come from so novel a direction that it calls into question the very concept of a legal abortion. The joining of those two concepts must be shown to be so contradictory to law and human decency, that the two concepts simply cannot co-exist. As there could not be any parity between Dred Scott's view of the Black Man and Abraham Lincoln's, so it must be clear that there is no parity between legal and abortion. The challenge must be a complete rejection of abortion as in any way legally acceptable, and it must be shown that there is no law under which abortion could be made acceptable.

What must be drawn from legal history is a right so comprehensive in scope, so all inclusive of other rights, so all embracing in its extension to whatever pertains to human life, that all other rights exist in it as parts in a whole.

If that seems difficult, or even impossible, in the light of the huge national controversy over abortion, it must be remembered that human and rights did not extend and did not apply to the Black Man in Dred Scott. The Black Man, according to that majority opinion, "had no rights that the white man was bound to respect": he had no human and therefore no legal status. Those who were convinced that Dred Scott was right could not be convinced otherwise. It was a matter of legal demonstration.

As in the case of slavery, those who wanted it, wanted it for their own advantage, with no consideration whatsoever for the slave. It was not a question of right or wrong, of lawful or unlawful: it was a question of wanting to use someone else for one's own advantage and not willing to lose that advantage. "It is my advantage." That was the only justification, and laws had to be fashioned to make that possible, and keep or gain that advantage. It must be remembered that it was the law that gave sanction to slavery, just as it is the law that gives sanction to abortion.

That comprehensive right is not had for the asking: it has to be drawn out and clarified, in an actual case, from precedents, precedents in constitutional history that somehow mirror the evil of abortion and are linked together, logically and in time, by some common bond, some underlying principle. Since the constitution and the statutes are silent, there is a huge labor of research to be done, and the marshalling of facts bearing on the case and on the precedents.

What is surprising in the case of abortion is that this labor of research was not done by some body of scholars established specifically for that purpose, such as the American Law Institute, founded seventy years ago to bring some kind of unity into the forest of precedents. It is a question of building up a common law from this mountain of precedents, a common law to underpin the constitutional questions. The work should have been done before Justice Blackmun put pen to paper to draw up the majority opinion. That opinion remains only a majority opinion, for the law to follow until from the laboratory of the law, the case reveals its kernel.

Most constitutional lawyers agree that Roe v. Wade is a constitutional disaster, but they are not agreed why. What the case awaits is the isolating and identifying of its ratio decidendi, its underlying principle, linking it with its precedents, and revealing what the Common Law has insisted all along: that the unborn have a special place in the application and administration of law. This Roe v. Wade denied. What has to be demonstrated, in the white-heat of legal reasoning, is that the Roe v. Wade decision is an illegitimate progeny, claiming for itself a constitutional inheritance which does not belong to it.

The words of Justice Cardozo are as timely as ever, indicating perhaps why no lawyer has tackled the question: "More and more we are looking to the scholar in his study, to the jurist rather than to the judge and lawyer. We know how much can be done by one man acting and speaking only for himself." That was true of Bartolome de Las Casas, it was true of Abraham Lincoln, it was true of Louis Brandeis, Judge Elmer Dundy and Thurgood Marshall. Their achievement came from their knowledge of the law, and their ability to recognize when that law had veered off course. How far off course in the case of abortion can be read in the precedents, as they pass judgment on this latest dispute before the Court. What the dispute and the precedents point to is a legal first, a startling revelation that has remained hidden in the law under other names and protecting other rights, emerging from the abortion dispute bearing its own name and wearing its own face. But it is only the scalpel of the law, citing precedent, progression and fact, as part of an actual case, that the force of precedent reveals the mother-lode, the madre vino that points with astonishing accuracy to the issue at stake in the abortion question.

That issue is dominion. It was that issue that began the search for constitutional principles in Las Cases battle for the rights of Indian peoples and the overthrowing of the Spanish system of encomienda. It was the issue at stake in slavery, and in Lincoln's defense of the rights of Black Africans. It was the issue at stake in Standing Bear, the Brandeis Brief, child labor and segregation. It was the issue in the 13th, 14th and 15th Amendments, as it was the issue in the 19th - - the right of dominion, which a human being has over his or her total person, by the very fact that he or she is a human being.

It has been expressed in other ways and embodied in other rights. It is a constitutional right that emerged only with Roe v. Wade, where it is mentioned specifically by Justice Blackmun, but it is more basic than the right to privacy, and the right to privacy flows from it as water from its source. It belongs to the unborn, as it belongs to every other human being, from the foundational fact that no one can exercise dominion over another, by whatever name or under whatever title. It is always a false title and can be so demonstrated by the very nature of the right of dominion.

In the case of the unborn, the constitutional question is: Who has dominion? And under what title does he or she have dominion? The law does not have dominion, since that is the very nature of a constitutional right: the law only secures it, assures it and protects it. The mother does not have dominion; whatever dominion she can lawfully exercise is exercised in trust, for the benefit of the unborn. Only the unborn child can lawfully exercise dominion over his or her person. No other human being or constituted power has any lawful title to exercise dominion over his or her person. No other human being or constituted power has any lawful title to exercise dominion over the unborn. That is the very nature of a constitutional right.

These are the basic questions raised by Roe v. Wade, and which will now have to be faced in a constitutional challenge to that decision. Is the Court open to the raising and asking of these questions? Justice O'Connor has answered that question: "When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully. "(Webster, p. 441)

Roe v. Wade holds only on a case-to-case basis. Any new case could "turn on the constitutional validity of Roe v. Wade". To be successfully challenged, the constitutional validity must be dismantled piece by piece under the careful scrutiny of a principle that reveals its invalidity. This is what Lincoln did with Dred Scott, and Thurgood Marshall with Plessy v. Ferguson. The Court has left the door open for a constitutional case against Roe v. Wade. I have tried to show in this paper that the case is waiting right at the door.

 

The Case for the Unborn

 

10 - THE NEW JURIDIC VACUUM: UNBORN LIFE

IT IS A STRANGE FACT OF HISTORY that human rights become a matter of law only after their savage violation. Law develops from lawlessness. That was true of Las Casas and the genocide of the Indians of Spanish America. It was true of Abraham Lincoln and the abolition of slavery, and it was true of Thurgood Marshall and the outlawing of segregation. Laws had to be created to check the lawlessness.

In the beginning, it is not rights that are the object of law, it is the violation of those rights, it is human beings caught in the web of some inhumanity, the victims of lawlessness. The law looks first to the victim.

To demonstrate that the unborn have rights under the law is not therefore the first object of concern or debate. It is the violence done to them, the dismembering of their bodies in the womb, the violent snuffing out of their precarious hold on life, the surgical and sanitary and methodical destruction of their developing powers of life and locomotion.

It is strange, but in keeping with the history of law that the entrance of the unborn into the legal arena was through the issue of abortion. But this follows the pattern of constitutional history: from the securing of rights for different classes of people (African-Americans, Native Americans, workers, women), to those who have not reached their majority (minors, the young, children, infants), and now, the unborn. Every step of the way began with violence, the denial of human status to justify the violence, the denial of legal status, the denial of rights. There has been almost no exception, the precedents are legion.

So that is where the legal battle begins, in a new lawlessness that is not called lawlessness, that is given another name. It is that new lawlessness that reveals a new legal vacuum, the absence of any laws and the denial that any laws are needed. This was true of slavery, it was true of segregation, it was true of child labor. It should not be surprising that it is true in the case of the unborn.

The Naming of the Beast.

In his famous debate with Juan Ginés de Sepulveda, Bartolomé de Las Casas had to refute before the Council of the Indies and the King of Spain, the monstrous claim that the Indians were natural slaves, that they were sub-human, that their difference in race, religion and culture made them by nature inferior to their Spanish conquerors and fit only to be slaves. If that claim were true, or held to be true, their life, their persons, their bodies and their labor, their lands and their possessions were at the disposition of the Spaniards. They were disposable, expendable, possessing no rights and no dignity that the Spaniards were bound to respect and were little better than cattle to be herded and driven and slaughtered for the convenience of their European masters.

And that is exactly what happened. Anyone who thinks that Las Casas "Decimation of the Indies" is an exaggeration need only consult the statistics of the decline in population in the Caribbean within fifty years of Columbus' landing, or Prescott's account of the "conquest" of Mexico and Peru. Las Casas' last years were spent working desperately for the restoration of the Inca kings, because he knew that if the natives of the Americas were ever truly to be free, they had to have their own rulers. The only result of his efforts was the execution of the last Inca king.

What is needed in cases on abortion brought up before the Supreme Court is a detailed and graphic account of the medical and surgical facts of abortion, supported by the latest research in genetics, embryology, gynecology and related sciences: anatomy, bio-chemistry, cytology, obstetrics, radiology, uterography and amniology. The work in these areas is extensive, at centers such as The Jackson Laboratory in Bar Harbor, Maine, and at bio-genetics centers at several leading universities. These sciences are growing in number and it is not untrue to say that there are at least 200 individual sciences that could be consulted on exactly what happens when an abortion occurs. The destruction of unborn life and the latest research on what is destroyed by the uterine surgery involved is a powerful demonstration of the medical effects of abortion. These are the kinds of facts that have to be made part of the judicial process.

It is not enough, legally, to abhor the destruction of unborn life. The scientific details of that destruction must support the allegation that it is unlawful.

What these sciences can demonstrate with detailed empirical data, is that the womb is the temporary habitation of a developing human being, with embryonic and extraembryonic supports systems designed specifically for the preservation of a human life. How many judges, for instance, know the scientific structure of the amnion and chorion, the inner and outer fetal membranes, and how, as the unborn child begins to experience the epiphany of its powers, it casts off the thin layer of the amnion to form the amnichorionic sac? How much of this process is instinctive, or merely neurobiotaxical, is not clearly discernible, but it does lay the basis for a new scientific and legal description of gestation: A human subject in a state of somatic organizational and developmental repose, with an integrating and organizational principle distinct from and separate from the body of the mother. And there is a body of evidence supporting the claim that the integrating principle is a human person in the unfolding of its innate human potential, gradually experiencing, expressing and revealing the blossoming of its distinctly human powers.

The question of the unborn, as I have consistently repeated, has never entered the legal arena before and this is the first time that the law and the courts have had to face the legal status of the unborn child. The rights of the unborn, in the past, were closely allied with the rights of the mother, with the questions of the rights of offspring, the rights of inheritance, with the Law of Torts, and with problems relating to medicine. With this definitive entrance of the unborn into the legal arena by Roe v. Wade, the court has to be educated to all aspects of the question, and the precedents to be studied in this matter are those relating to child labor and segregation, in which scientific data was used to show the harm done by these practices.

But there is more than scientific data involved: there are legal principles of long standing which have to be applied to this new data, to bring the question into the arena of law. It is the neglect of these principles, our inheritance of Common Law, which is partly responsible for the legal impasse with regard to abortion. The law has faced such conflicts before and expressed the resolution of those conflicts in axioms and aphorisms which summed up the legal issue at the heart of the case.

"Quae rerum natura prohibentur nulla lege confirmata sunt: Things which are forbidden by the nature of things cannot be confirmed by any law."

"Quae singula non prosunt, juncta juvant: Things which taken individually have no weight, help when taken together."

"Quaecunque intra ratione legis inveniuntur, intra legem ipsam esse judicantur: Things which are found within the reason of the law, are considered to be within the law itself."

"Quaeras de dubiis, legem bene discere si vis: Inquire into doubtful points, if you wish to understand the law well."

"Quaerere dat sapere quae sunt legitima vere: the way to know what things are lawful is to inquire into them."

"Quod meum est, sine me auferri non potest: That which is mine cannot be taken away without my consent."

"Quod vero contra ratione juris receptum est, non est producendum ad consequentia: That which has been admitted contrary to the reason of the law, should not be drawn into the precedents."

The principles are legion, and Justice Benjamin Cardozo is right when he attributes bad judgments and confusion in the courts to a neglect of the Common Law. Somehow, and for some reason, abortion has always been considered a crime against humanity, the criminal misuse of surgical skills and medical knowledge, and an unwarranted and unlawful attack upon the most helpless of human beings. The reasons may not have always been expressed in law, but the very universality of the laws indicate some kind of common conviction. Searching once more for the basis of that common conviction is to find the basis for the law itself ...and the reason for further laws when the rights of the unborn are threatened, denied or violated.

"Qui in utero est pro jam nato habetur, quoties de ejus commodo quaeritur" is a good place to start, and sciences like genetics, embryology and amniology may give us further insights into why these laws were framed in the first place.

 

11 - THE NEW JURIDIC DEVELOPMENT: EMBRYONIC LAW

THE QUESTION OF THE UNBORN is not a matter of statutory or positive law, it is a matter of constitutional law. The basic principle of constitutional law upon which all constitutional questions have been resolved is the principle of exceptionless rights. In the past, it was a question of whether the rights and immunities guaranteed by the Constitution included Black Africans, Native Americans, workers, women, children, Black citizens. Now, the question is whether they include the unborn. What has been opened is a whole new development in law: the application of the constitutional doctrine of human rights to the unborn.

The constitutional solution to the problem is a variant of Lord Mansfield's decision on the slave brought to England by his American "master". "The air of England has long been too pure for a slave and every man is free who breathes it. Every man who comes into England is entitled to the protection of English laws, whatever oppression he may heretofore have suffered and whatever the color of his skin. 'Quamvis ille niger, quamvis tu candidus esses. Let the Negro be discharged!"

If that principle is true of English law, where such rights were not guaranteed by a written Constitution and a Bill of Rights, it is a fortiori true of American law. It may take extensive litigation to demonstrate this from our own constitutional principles and traditions of law, and it may take hundreds of cases lost in the courts before the issue is clarified, but there is no doubt that this is the constitutional issue.

It is strange how such questions, even those already settled by constitutional amendment, come up when the question of human rights again becomes a national issue. After Justice Douglas, in his early days in government, had given a talk on the Bill of Rights and the basic constitutional principle that all men are created equal, he received a phone call from some government official telling him that he was mistaken and that the expression meant only that Americans were equal to Englishmen and had no further extension.

Douglas replied: "Mr. Secretary, I thought that question had been settled almost a hundred years ago by Abraham Lincoln." There are still those who want only their own rights recognized by law, not the rights of others.

The development of embryonic law will be a long and painful development, because it involves a tangle of rights and duties, relations and responsibilities, ancient principles of Common Law and the Laws of Equity that have become atrophied from long disuse and have long remained dormant, the claims of medical science, or at least a good segment of the medical community who do not recognize that the doctrine of human rights includes the unborn, and the advocates of womens' rights and reproductive rights, who see the issue as one of the liberation of women. But this is a no more tangled skein that the issues involved in slavery, segregation and workers' rights. It is simply unconceivable that a conceived child on American soil should be any less safe from unjust aggression than an escaped slave on English soil. This incongruity may take some time for the law to recognize, but a beginning is found in the abortion cases themselves, where the responsibility of the state in the protection of unborn life has been strengthened.

"The Court decided that for the protection of any interests it has, the fetus must rely upon the state." It is when a state sees a conflict between its responsibility to the unborn and the Supreme Court's protection of the individual's right to privacy that the opening suggested by Justice O'Connor may occur. That is what happened in Muller v. Oregon, when a state passed laws more restrictive of the employer's right to liberty of contract than previous Supreme court decisions allowed. The state was the defendant in the case, and Louis Brandeis successfully defended the state's responsibility in the matter. Lochner v. New York was substantively overturned and Muller v. Oregon became the opening for a defense of constitutional rights not recognized before, the rights of workers.

But there is something further, something recognized by everyone who has studied the question. "Abortion is different from other privacy rights that the Court had previously protected because it involved not only government and the individual, but also a third entity – the fetus… The majority opinion did acknowledge this complicating factor and tried to deal with it in a reasonable manner; the fact remains, however, that the existence of the fetus makes the right to an abortion qualitatively different from other privacy rights because it requires a determination of what rights and duties both government and individual have towards the third party."

It is from that qualitative difference that embryonic law is to spring, and this small opening in the abortion issue could be widened by the litigation of concrete cases. Where those cases are to be found and how they are to be brought before the courts are questions based on each individual case, but there is a basis already in the decided cases for opening the constitutional question.

When that constitutional question is opened, it will be looking for precedents, precedents not in medico-legal history, but in constitutional history itself. It is then that analogy, comparison of cases, logical and historical progression and other principles of Common Law will begin to be brought into the issue, principles that remain for most cases in Blackstone's Commentaries, Coke's Institutes, or Blacks Law Dictionary. Then, what will be all important is not the inflexibility of the Court or the abiding strength of stare decisis, but the advocate's knowledge of the Law. "Judicial power is never exercised for the purpose of giving effect to the will of the judge…(but)…always for the purpose of giving effect…to the will of the law", in the words of John Marshall. That was what gave power to Lincoln's words, to those of Louis Brandeis and to those of Thurgood Marshall in their constitutional battles. The march of legal reasoning in its firm grasp upon the heritage of law as it moves from fact to precedent to premise to conclusion is irresistible and inexorable. It simply has not yet used in the defense of the unborn. The David has not yet appeared who can slay the giant with five smooth stones.

The hammering out of the principles of embryonic law will take place only in the courts, in actual cases brought up for litigation, begun in the lower courts and rising by appeal through the court system to the Supreme Court itself. In this Richard Kluger is totally correct: Issues dividing the nation "come in the guise of private disputes between only the litigating parties, but everybody understands that this is a legal fiction… American society reduces its most troublesome controversies to the scope of a lawsuit."

It is only by massive litigation, massive litigation on a national level, challenging the constitutionality of Roe v. Wade, that any breakthrough will be made in reversing that decision or turning back the tide of legalized abortion. That is the lesson that constitutional history teaches, and to ignore that lesson is to be assured that Roe v. Wade, like Dred Scott and Plessy v. Ferguson will remain the law into the far-distant future until someone has the courage to challenge it in the courts.

 

12 - SOURCES FOR A CONSTITUTIONAL CHALLENGE

UNDOUBTEDLY, ABORTION IS THE MOST VEXING constitutional question that has been brought to the Supreme Court, but it is by no means the most difficult or the most unprecedented. Slavery was a far more explosive issue, far more entrenched in legal precedents and supported by positive laws of long standing. Segregation had been given the cover of constitutional precedent and embodied in countless Supreme Court decisions, defended by statesmen and constitutional lawyers and deeply ingrained in the habits of public and private life for vast numbers of people. Child labor was part of a widely accepted economic practice, upon which families and employers depended for their livelihood, and even attempts by the federal government to eliminate the practice were overruled by the Court.

In the case of abortion, the only real hurdle is the Roe v. Wade decision itself, since it is that Supreme Court decision and that alone that has given the practice nationwide acceptance and that acceptance is based completely on the majority opinion written by Justice Blackmun. The decision was not unanimous, and subsequent abortions cases (Webster, Danforth, Casey, etc.) have only reiterated the conclusion of the majority opinion of Roe that a woman's access to an abortion cannot be denied, with certain minor restrictions left to the determination of the states.

There is no long-standing precedent with regard to abortion, certainly none as long-standing as liberty of contract which held as a precedent in workers' rights for almost fifty years, or separate, but equal, which supported segregation laws for fifty-eight years. The constitutional fabric of Roe v. Wade has never really been tested and in over twenty years has never seriously been challenged. The sources for that challenge are as numerous as the Supreme Court decisions that have been overturned, and it is in the history of constitutional law, in its classic cases and in its major figures, that the sources for a constitutional challenge are to be found.

1.The Constitutional Sources.

One of the richest sources for that constitutional challenge are The Federalist papers, the debates over the Constitution itself, which helped to fashion the actual text of the Constitution of the United States. No one can hope to understand the articles and provisions set down by the Founders of the Republic without being thoroughly familiar with the public debate on the question: the writings of Madison, Hamilton, Jay, Adams and Jefferson, in the varying roles they played in The Federalist papers or in the debate surrounding it.

The second most important constitutional source are the constitutional labors of John Marshall, the major force in establishing the Constitution as the binding law of the government and polity of the United States. His decisions in the controversies which arose regarding constitutional matters are classic precedents that have shaped American constitutional doctrine and the role of the judiciary in American life.

The third most important constitutional source are the speeches and writings of Abraham Lincoln, in particular his part in the constitutional debate on slavery. He was able to draw from the founding documents of the country the constitutional principles that triumphed in that debate and his reasoning on those documents has never been surpassed. He provides a model of how the Constitution is to be used in resolving divisive national issues.

A fourth constitutional source are the dissenting opinions of Justices Harlan, Holmes, Brandeis and Cardozo, since these dissents embody constitutional principles and legal arguments aimed precisely at majority decisions. These are the considered opinions of minds steeped in the law and thoroughly familiar with the Constitution and often indicate new directions that the Court will be taking, to overturn a decision or to set precedents for future decisions.

A fifth source are the concurring and dissenting opinions in Roe v. Wade and the Abortion Cases, for the obvious reason that they disagree with the majority opinion and point out the weaknesses and flaws in the decision or the constitutional objections to the decision.

A final constitutional source are the historic reversals in constitutional history, the litigation and legal reasoning involved in the cases and the reasons for the reversal. These cases provide models for the reversal of future cases and demonstrate the facts and the legal arguments that convinced the Court to overturn a previous decision.

2. Major Figures in Constitutional History.

After the Founding Fathers, John Marshall and Abraham Lincoln, it is the writings of Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo that are the richest source of constitutional doctrine. These men are the actual practitioners of constitutional law, the seed thinkers and pioneers of new directions the Court would take and astute critics and commentators of judicial practice and constitutional blunders.

After John Marshall, their writings and labors have been major factors in the development of constitutional law and they have left the impress of their minds on the development of the modern Supreme Court. The literature on all three of these Supreme Court Justices is extensive and they point the way to resolving serious constitutional questions and issues that erupt in public life.

3.Common Law Sources.

No one can take part in a constitutional challenge who is not well versed in the principles and precedents of Common Law. This includes Blackstone's Commentaries, Coke's Institutes and Bracton's Laws & Customs of England. These sources provide the very language and tenets of legal reasoning, the legal grammar and syntax in which legal arguments are phrased and without this legal language at one's fingertips, and tripping on the tongue, the presentation of a case in a legal forum is impossible. And while it is true, and is an axiom of the Court, that oral arguments seldom win a case, it is just as axiomatic that oral arguments often lose a case. Common Law is the language of judges and of courts and not to be steeped in that language and fluent in its use is a discourtesy to the Court and an unpardonable lack of legal manners. The best preparation that any lawyer can have, after carefully written legal briefs, is a thorough familiarity with every precept and axiom of Common Law in Blackstone and Coke, and with the major precedents of Common Law.

4. Other Sources.

There are a number of great judges not on the Supreme Court, whose writings, decisions and opinions have made a lasting contribution to constitutional doctrine. The most prominent of these is Judge Learned Hand, sometimes referred to in his lifetime as "the Tenth Justice". Like his Supreme Court colleagues, Holmes, Brandeis and Cardozo, there is an extensive literature on his life, writings, addresses and opinions, and his almost fifty years on the bench. The richness of the material is indicated by the over 100,000 items in the Learned Hand Papers at the Harvard Law School Library, a rich treasure-trove of constitutional law.

One other priceless source worth mentioning are "The Papers of Daniel Webster", published in three volumes by the University Press of New England in 1982. Webster argued more cases before the Supreme Court than anyone else in history, classic cases that made history themselves. Observing a master-craftsman at work is instructive, and Daniel Webster was a supreme master of the legal craft. His is constitutional doctrine almost at its very source as well as legal reasoning on the sources, seldom equaled.

 

POSTSCRIPT

"What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If precedent is applicable, when I do refuse to follow it? If no precedent is applicable, when I do refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent of the future? I am seeking logical consistency, the symmentry of the legal structure, how far shall I see it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my ownor the common standards of justice and morals? Into that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions...The elements have not come together by chance, Some principle, however unavowed and inarticulate and subconscious, has regulated the infusion."

-- BENJAMIN N. CARDOZO

The results of a judicial process are not a foregone conclusion… and the history of constitutional law bears witness that those who timidly submit to what is obviously a flawed decision are its first victims or provide new victims for the gristmill of history.

"The elements", Benjamin Cardozo has written, "have not come together by chance." There is some historical reason why the elements that have brought together the question of the unborn into the legal arena have come together at this time, there is some legal principle waiting to emerge from the litigation of this case, some "new stock of descent" that may be critical in the future history of constitutional law, some new progeny to be added to those Supreme Court decisions that have shaped the character of American society. The progression of precedents is impressive: slavery, segregation, Native Americans, workers, women, children, all classical cases in which certain basic rights were ignored by a decision of the Court. The question of the unborn is the next step in that natural progression, a test of the Constitution itself and its application to concrete cases critical to the growth of the nation, and to the judiciary, which is the chief protector and upholder of those human rights guaranteed by the Constitution.

 

APPENDIX

Stare Decisis

By WILLIAM O. DOUGLAS

Associate justice of the Supreme Court of the United States

THE EIGHTH ANNUAL BENJAMIN N. CARDOZO LECTURE DELIVERED BEFORE THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK ON APRIL 12, 1949

Most lawyers, by training and practice, are all too apt to turn their interests and their clients toward the finding, not the creating, of precedents. This lawyerly search is for moorings where clients can be safely anchored. But the search has, as well, a deeper, more personal impetus. For the lawyer himself shares the yearning for security that is common to all people everywhere. And this yearning grows as the world seems to grow more insecure.

We live in an age of doubt and confusion. Rules that once seemed fixed and certain today seem beclouded. Principles of law have been challenged and judges asked to refashion them. Many raised their voices in protest. Some were special pleaders with a stake in existing law. Others had a sincere belief that the foremost function of law in these days of stress and strain is to remain steady and stable so as to promote security. Thus judges have been admonished to hold steadfast to ancient precedents lest the courts themselves add fresh doubt, confusion, and concern over the strength of our institutions.

This search for a static security, in the law or elsewhere, is misguided. The fact is that security can only be achieved through constant change, through the wise discarding of old ideas that have outlived their usefulness, and though the adapting of others to current facts. There is only an illusion of safety in a Maginot Line. Social forces like armies can sweep around a fixed position and make it untenable. A position that can be shifted to meet such forces and at least partly absorb them alone gives hope of security.

I speak here of long-term swings in the law. I do not suggest that stare decisis is so fragile a thing as to bow before every wind. The law is not properly susceptible to whim or caprice. It must have the sturdy qualities required of every framework that is designed for substantial structures. Moreover, it must have uniformity when applied to the daily affairs of men.

Uniformity and continuity in law are necessary to many activities. If they are not present, the integrity of contracts, wills, conveyances, and securities is impaired. (See United States v. Title Inc. Co., 265 U.S. 472, 486-487.) And there will be no equal justice under law if a negligence rule is applied in the morning but not in the afternoon. Stare decisis serves to take the capricous element out of law and to give stability to a society. It is a strong tie which the future has to the past.

It is easy, however, to overemphasize stare decisis as a principle in the lives of men. Even for the experts law is only a prediction of what judges will do under a given set of facts – a prediction that makes rules of law and decisions not logical deductions but functions of human behavior. There are usually plenty of precedents to go around; and with the accumulation of decisions, it is no great problem for the lawyer to find legal authority for most propositions. The difficulty is to estimate what effect a slightly different shade of facts will have and to predict the speed of the current in a changing stream of the law. The predictions and prophecies that lawyers make are indeed appraisals of a host of imponderables. The decisions of yesterday or of the last century are only the starting points.

As for laymen, their conception of the rules of law that govern their conduct is so nebulous that in one sense, as Gray said, the law in its application to their normal affairs is to a very considerable extent ex post facto.

The place of stare decisis is constitutional law is even more tenuous. A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it. So he comes to formulate his own views, rejecting some earlier ones as false and embracing others. He cannot do otherwise unless he lets men long dead and unaware of the problems of the age in which he lives do his thinking for him.

This reexamination of precedent in constitutional law is a personal matter for each judge who comes along. When only one new judge is appointed during a short period, the unsettling effect in constitutional law may not be great. But when a majority of a Court is suddenly reconstituted, there is likely to be substantial unsettlement. There will be unsettlement until the new judges have taken their positions on constitutional doctrine. During that time - which may extend a decade or more - constitutional law will be in flux. That is the necessary consequence of our system and to my mind a healthy one. The alternative is to let the Constitution freeze in the pattern which one generation gave it. But the Constitution was designed for the vicissitudes of time. It must never become a code which carries one overtones of one period that may be hostile to another.

So far as constitutional law is concerned stare decisis must give way before the dynamic component of history. Once it does, the cycle starts again. Today's new and startling decision quickly becomes a coveted anchorage for new vested interests. The former proponents of change acquire an acute conservatism in their new status quo. It will then take an oncoming group from a new generation to catch the broader vision which may require an undoing of the work of our present and their past.

* * *

Much of what courts do is little understood by laymen. Very few portions of the press undertake to show the social, economic, or political significance of the work of the judiciary or to educate the public on long-term trends. Lawyers often do not see the broader view which is exposed by the narrow and intensely personal efforts of a client to vindicate a position or gain an advantage. Yet the work of a court may send a whole economy in one direction or help shape the manifest destiny of an era. Two illustrations from different periods of our history will indicate what I mean.

For at least a decade or more it was commonly assumed that the Fourteenth Amendment was adopted to protect Negroes in their newly won rights. Other interests had sought to creep under its wing. Thus corporations claimed they were persons within the meaning of the equal protection Clause. Woods (then circuit judge) thought the language of the Amendment and its history too clear to admit of doubt on the point. In 1870 he rejected the contention in Insurance Co. v. New Orleans, 1 Woods 85. Sixteen years passed. Woods was now a member of the Court of which Waite was Chief justice. A railroad company pressed its claim that California's tax assessment against it violated the Equal Protection Clause of the Fourteenth Amendment. Before the point was even argued, Waite announced from the bench that the Court did not care to hear argument on the question whether the clause applied to corporations. "We are all of opinion that it does," he said. (Santa Clara Co. v. Southern Pac. R. Co., 1 18 U S 394, 396.) Thus without argument or opinion on the point the Santa Clara case became one of the most momentous of all our decisions. It was not long before the same constitutional doctrine was extended to the Due Process Clause. Again the decision was cryptic and oracular, without exposition or explanation.

These decisions, whether right or wrong, sound or unsound, may have changed the course of our industrial history. Corporations were now armed with constitutional prerogatives. And so armed, they proceeded to the development and exploitation of a continent in a manner never equaled before or since. Some think these decisions helped give corporations what Parrington has called "the freedom of buccaneers." They doubtless did release some of the dynamic quality of the drive that built Industrial America in a brilliant (albeit ruthless) way.

These unexplained (and certainly not obvious) decisions are now so implicit in the financial and industrial undertaking of the nation that a recent challenge of them had a resounding effect. Such is the hold of stare decisis on the profession.

A half century passed and the Court made another decision whose impact on industrial America was almost as profound.

In 1918 the Court in the Dagenhart case (Hammer v. Dagenhart, 247 U. S. 25 1) had decided that Congress had no power to regulate the production of goods for commerce where the goods themselves were harmless. It thus struck down a child labor law. A process of erosion soon set in. Distinctions and qualifications were made in a long line of decisions. Finally in 1941 in a case involving the constitutionality of the Fair Labor Standards Act (United States v. Darby, 312 U. S. 100) a unanimous Court overruled the earlier five-to-four decision. Stone's exposition of the Commerce Clause in the Darby case was undoubtedly more faithful to Marshall's conception of it than that espoused by a bare majority of the Court in the Dagenhart case. However that may be, the Darby case gave sanction to a new centralized force in American industrial and social life.

Some have thought that but for the philosophy which it represents and the power of the Federal Government which it sanctions, the nation would not have been able to marshal all the strength and to develop all the ingenuity and resourcefulness necessary to deal with the increasingly national problems of the age.

The decision of the Court in the Santa Clara case protected the forces of free enterprise that were building America. We can never know how much the specter of socialism and the fear of assaults on capitalism contributed to the decision. But the end result is plain: the Court itself became part of the dynamic component of history. It did not live aloof from the turbulence of the times. It was part of the life of the community, absorbed from it the dominant attitudes and feelings of the day, and moved with the impetus of the era.

The Court in the Darby case was likewise extremely sensitive to the critical problems of another day. The whole of the democratic world had long been reexamining the conditions that had produced the misery of depressions. It is a soul-searching decision when one is asked to deny the existence of the power of government to correct a social evil. The unanimity of the Court in the Darby case indicated how high experience had piled since Dagenhart was decided.

Neither the Court in the Santa Clara case nor the Court in the Darby case was insensitive to the implications of the decisions. Precedents are made or unmade not on logic and history alone. The choices left by the generality of a constitution relate to policy. That is why laymen and lawyers alike must look widely and diversely for understanding. The problem of the judge is to keep personal predilections from dictating the choice and to be as faithful as possible to the architectural scheme. We can get from those who preceded a sense of the continuity of a society. We can draw from their learning a feel for the durability of a doctrine and a sense of the origins of principles. But we have experience that they never knew. Our vision may be shorter or longer But is ours. It is better that we make our own history than be governed by the dead. We too must be dynamic components of history if our institutions are to be vital, directive forces in the life of our age.

One can respect the policy decision both in the Santa Clara case and in the Darby case. But whatever the view on the merits all will agree, I think, that the recent Court was more faithful to the democratic tradition. It wrote in words that all could understand why it did what it did. That is vital to the integrity of the judicial process.

* * *

The periods in which the Santa Clara and the Darby cases were decided were both turbulent. It is of interest to look at them comparatively for insight into the problem of stability of judicial precedents. The latter period closes in some respects a cycle started by the first.

One measure of stability is the extent to which precedents are overruled.

During the thirty-year period between 1860 and 1890 the Court on eighteen occasions overruled (expressly or in effect) controlling precedents. In 10 of these the Court was unanimous. In 13 of the overruled cases the Court had been unanimous. Eight of these cases involved constitutional issues Ten involved questions of state law and common law and interpretations of statutes.

The most important of the constitutional decisions were the Legal Tender Cases (11 Wall. 682, 12 Wall- 457) that overruled the Hepburn case (Hepburn v. Griswold, 8 Wall. 603) decided the previous year. The Hepburn case, decided a 4-3 vote in 1870, held that a creditor need not take United States notes as payment under contracts made prior to the Act of Congress declaring the notes legal tender. The next year the minority of three became a majority of five through the appointment of Strong and Bradley by President Grant.

Feeling of the day ran high. Strange comrades were aligned on both sides of the debate. There was bitter argument by the public. Charges of court-packing reverberated through the country. Many who opposed the first decision likewise opposed the second. The debate shook the country. But the judges then as now spoke their minds. These were men of strong convictions; and they gave the government the flexible control over currency which they thought the Constitution intended.

Hughes once said of this decision. "From the standpoint of the effect on public opinion, there can be no doubt that the reopening of the case was a serious mistake and the overruling in such a short time, and by one vote, of the previous decision shook popular respect for the Court."' My own view is different. In some cases it is of course more important that a rule be announced and a dispute put at rest than that a decision be made one way or the other.

But when it comes to a constitutional question, especially the authority of government to act, the decision where possible should reflect views of the full court.

The reversal of the Court in the Legal Tender Cases has a healthy effect. Management of currency was left in the legislative field, where the school of which Cardozo was a conscious member thinks most social and economic problems should remain. It was left so that the people could experiment even unwisely. That is a part of the adventure in democratic government – a view expressed by Bradley in the Legal Tender Cases, 12 Wall. P. 562, when he stated, "Questions of political expediency belong to the legislative halls, not to the judicial forum."

In the decade preceding 1860, the Court had held that the admiralty jurisdiction depended on the navigable character of the water, not upon the ebb and flew of the tide this overruling a leading case from the preceding generation. In the 1868 Term the Court made the foundation of admiralty even firmer by holding, contrary to a ten-year-decision that admiralty jurisdiction extended to commerce on navigable waters though the transportation was wholly within a state; and further that the action in rem was limited to the admiralty court.

In the early part of the period from 1860- 1890, the Court gave broad leeway to state regulations of interstate commerce. It sustained a Wisconsin rate even on interstate commerce since Congress had not acted. It held valid a tax on a railroad’s gross receipts from interstate commerce. It allowed a State to impose a nondiscriminatory license tax on an interstate business. The first two of these decisions were by divided Court; the third was unanimous.

But in only a few years important and rather basic shifts on these matters were made. The silence of Congress – the fact that it had not regulated a particular matter-was given increasing weight as evidence of an intent to leave interstate commerce free from regulation. The Court undertook a stricter application of constitutional principles designed to keep the arteries of commerce open and to free the interstate aspects of business from state control whether by taxes or regulation.

State regulation of discriminatory interstate rates of carriers was annulled in the October Term, 1886. In the same Term a unanimous Court held unconstitutional an unapportioned tax on the gross receipts of interstate commerce. The following Term a unanimous Court overturned its previous unanimous decision and held that a license tax on an interstate business was unconstitutional. Shortly thereafter it struck down a state law regulating the sale of liquor in the original package by the importer and with it a forty- three-year-old precedent. Even the evils of alcohol were considered less weighty than the evils of a constrained interstate commerce. Fields view that (apart from strictly local aspects of commerce) the silence of Congress was the "equivalent to its declaration that commerce in the matter shall be free" was in the ascendancy.

In this period the Court also rejected a fifty-nine-year old precedent and held that Congress had no power to commit for contempt incurred by refusal to obey and respect an order in a Congressional investigation. In the 1824 Term Marshall had ruled that the question whether a suit is against a State within the prohibition of the Eleventh Amendment is determined by reference to the parties of record. After a checkered career that doctrine was finally excised from the law.

These were the eight cases overruling precedents on constitutional law.

The other ten involved more mundane subjects. In the October 1875 Term the Court in two cases, one from Missouri and one from Illinois held certain municipal bonds invalid under state law. In the October 1877 Term it overruled one of these and in the October 1879 Term it overruled fled the other. In 1868 the Court had field that a state while the owner of bearer bonds could limit their negotiability and charge all subsequent purchasers with notice. Less than 20 years later it changed its position on that point in a case involving the negotiability of the bonds of the United States. It overruled a 57-year old decision written by Marshall and held that a judgment against one partner was a bar to an action against a copartner. In the October1871 Term it partially overruled a case rendered two years earlier which held that the contingent right of preemption in public lands granted a railroad created an exemption of those lands from state taxation.

In the October 1873 Term it overruled a series of recent cases concerning the practice and proceedings in Territorial Courts. In the October 1882 Term it rejected its earlier unanimous view on the construction of an Act of Congress regarding the abatement of duties on imports on account of damage allowances. In the October 1882 Term the Court reversed an earlier decision concerning the damages covered by appeal bonds under an Act of Congress. Meanwhile it had also overruled a fairly recent decision restricting the right to review decisions of the highest court of a State. In the October 1880 Term, it rejected its prior interpretation of a patent rendered seven years earlier and held that the patent was valid as one for a process.

A number of decisions in the latter group involved overruling the Court's prior construction of Acts of Congress. These precedents were overruled against objections, at times vigorous, that the correction of the error, if any, should be left to Congress.

***

In the period from 1937-March 28, 1949, the Court in 30 cases overruled earlier decisions. In 21 of these the reversals were on constitutional grounds. In the great majority of the 30 cases the cases overruled had been decided within the previous 20 years.

These cases are too fresh in memory to require much space for discussion. The largest group - 8 in number - related to the taxing power of state and federal governments. Tax rates had become more burdensome than ever before in our history; and tax exemptions were being closely scrutinized as the government's need for revenue grew.

The new approach was largely fashioned by Hughes. He held for the Court that a nondiscriminatory federal income tax upon the lessee of a State was not open to the objection that it was a tax on an instrumentality of the State (Helvering v. Producers Corp., 303 U. S 376). Two decisions, one from that decade and one from the preceding decade, fell. The new doctrine was applied to sustain an Oklahoma estate tax on Indian property previously held exempt under the federal instrumentality doctrine. And finally in Oklahoma Tax Commission v. Texas Co., decided March 7, 1949, the rest of the cases by which tax immunities had been acquired in Indian property under the instrumentality theory were overruled.

Other private tax exemptions, riding on the concept of sovereign immunity from taxation, were reexamined and eliminated. Salaries of federal employees were placed within the reach of the state-taxing power, and the salaries of state employees within the reach of the national power. A state tax on a private contractor was upheld, even though its burden would eventually be passed on to the federal government. This tendency closely to scrutinize tax privileges led to the taxation of the salaries of federal judges appointed after the taxing statute.

A ten-year-old precedent was overruled and a State was allowed to levy an inheritance tax on snares of a corporation incorporated under its law, although the deceased had been domiciled elsewhere. In another tax case the Court repudiated a newly spun theory of the privileges and immunity clause which promised to throttle state power over business affairs.

In other ways too, the Court enlarged the regulatory power of the States in the field of economic affairs-by a less restrictive reading of the equal - protection clause; by a more pervasive view of state regulation of local aspects of interstate industries by tolerance of price-fixing by the States.

A judicially created restraint on the power of Congress over commerce was also removed in the Darby case. And contrary to longstanding rulings on the character of insurance, that business was held covered by the Sherman Act. During this period the Court also strengthened the federal eminent domain power by eliminating private property interests which had been judicially created in the bed of a navigable stream.

In the field of civil liberties the Court decided and then rather promptly reversed two decisions: it held that a State could not require school children to perform a flag salute in opposition to their religious beliefs and it struck down a license tax imposed on the dissemination of religious literature by a religious group. It also reversed a nine-year-old precedent and held that where a primary election was an integral part of the elective process for nominating candidates for Congress, a State could not exclude a person from the right to vote in it on account of race or color.

In the divorce field the Court reconstrued the Full Faith and Credit Clause so as to give the state of the domicile of one spouse more power over dissolution of the marriage relation.

In Erie R. Co. v. Tompkins, 304 U. S. 64, the Court rid the federal system of a precedent almost a century old, and with the latter went others that became obsolete. The Court saw its earlier holding as inviting discrimination by nonresidents of one State against residents of another in diversity cases. It therefore took a step towards uniformity by making local law as construed by state agencies controlling in federal Courts in that type of case. And finally in Lincoln Union v. Northwestern CO., 335 U. S. 525, decided January 3, 1949, it sustained the constitutionality of state laws outlawing the closed shop. In doing so it repudiated some precedents by which tile constitutional standard of Due Process had absorbed economic theories of tile judiciary. It returned closer to the earlier constitutional pronouncements that the States have the power "to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law." Id., at p. 536.

Those were the cases reflecting rights-about-face in constitutional law during this recent period. There were others which have been important in the affairs of the nation. A ruling that a utility's depreciation had to be taken at present value rather than cost was rejected. The rule that he who sells an unpatented part of a combination for use in tile assembled machine may be guilty of contributory infringement was rejected where a combination patent was being used to protect an unpatented part from competition. It was held that in admiralty the warranty of seaworthiness extended to the appliances and the place of work and that the owner was not relieved of liability because an employee negligently chose defective equipment where sound equipment was available.

In five cases tile Court overruled decisions involving interpretations of Acts of Congress and thus cleared the stream of law of derelicts of its own creation, not waiting for Congress to act. It held that private operators of vessels under certain contracts with the government could be sued for torts, the claimants not being restricted to suits against the United States under the Suits in Admiralty Act. It gave a restrictive interpretation to a statute declaratory of the power of federal courts to punish for contempt and thus returned to earlier views of the law. It changed its prior construction of the statute governing naturalization so as to do away with the requirement of an oath to bear arms as a condition of citizenship. It overruled two four-year-old precedents construing the provision of the Revenue Act Of 1926 that deals with transfers "intended to take effect in possession or enjoyment" at or after the grantor's death. And just the other day it overruled a nineteen-year-old decision in the same field.

***

In these cases, as in the ones from the 1860-1890 period already noticed, the Court rejected numerous pleas to let Congress correct mistakes that the Court had created. It was also reluctant to find in the silence of Congress approval of the statutory interpretations which it had adopted.

It is, I think, a healthy practice (too infrequently followed) for a court to reexamine its own doctrine. Legislative correction of judicial errors is often difficult to effect. Moreover, responsible government should entail the undoing of wrongs committed by the department in question. That course is faithful to democratic traditions. Respect for any tribunal is increased if it stands ready (save where injustice to intervening rights would occur) not only to correct the errors of others but also to confess its own. This was the philosophy expressed by a judge of the New York Court of Appeals almost a century ago when he proclaimed it "the duty of every judge and every court to examine its own decisions.... without fear, and to revise them without reluctance." That is to heed Shakespeare's warning in Merchant of Venice,

"’Twill be recorded for a precedent;

And many an error, by the same example

Will rush into the state."

***

I said that one measure of instability in the law is represented by the overruling of precedents. But the overruling itself is at times not the true measure of the change. Commonly the change extended over a long period; the erosion of a precedent was gradual. The overruling did not effect an abrupt change in the law; it rather recognized a fait accompli.

In other words the distinguishing of precedents is often a gradual and reluctant way of overruling cases. In modern times the House of Lords has rarely overruled a precedent. But as Radin has shown it has carried the technique of distinguishing precedents "to a very high pitch of ingenuity." And for us the process of distinguishing may indeed do service for overruling or have the same effect, as Brandeis observed in Burnet v. Coronado Oil & Gas CO., 2 85 U. S. 395, 408.

Hammer v. Dagenhart, 247 U. S. 251, had a checkered career. Its principle sometimes seemed to be on the wane and then to be restored. It was, for example, held not to forbid federal punishment of the transportation of stolen motor vehicles (Brooks v. United States, 267 U.S. 432) or of goods made by convict labor (Kentucky Whip & Collar Co. v. Illinois Central R. CO., 299 U. S. 334). Yet federal control of the wages, hours and working conditions of miners engaged in producing coal was invalidated (Carter v. Carter Coal Co., 298 U. S. 238). But that was the last burst of vitality of the doctrine. Labor Board v. Jones & Laughlin, 301 U. S. 1, decided in 1937, upheld the Wagner Act as applied to a company producing goods for commerce, and foreshadowed the demise of the Dagenhart case. Thus it had been at least substantially impaired before United States v. Darby, 312 U. S. 100, laid it finally to rest.

National Carbide Corp. v. Commissioner, decided March 28, 1949, continued the process of effective erosion of Southern Pacific Co. v. Lowe, 247 U.S. 330. It repudiated the doctrine of the Lowe case that a corporation formed or operated for business purposes could be disregarded for tax purposes if it had substantial identity in practical operation with its owner. A vestige of Lowe may have been left but the shadow that its doctrine had cast on tax law was removed. Ott v. Mississippi Barge Co., decided February 7, 1949, sustained a state tax on vessels moving in interstate waters on the theory of apportionment which had not emerged in earlier cases. Thus the law swept around old landmarks.

One of the most interesting examples of this process is the force of Helvering v. Producers Corp., 303 U. S- 376, which undermined the doctrine of intergovernmental tax immunity as extended to private persons. It overruled two cases. Over a ten-year period other cases followed, eliminating, one by one, the islands of tax immunity which private interests had acquired through the instrumentality theory. This doctrine had special vitality in the field of Indian affairs. Remnants of it survived in that area. Not until Oklahoma Tax Commission v. Texas Co., decided March 7, 1949, did the Court wipe out the residue of those cases.

The Texas Co. case involved a nondiscriminatory state gross production tax and excise tax on petroleum produced by a lessee of mineral rights in allotted and restricted Indian lands. The taxes were sustained, which meant overruling three earlier decisions.

But the Court went further. It also overruled two other cases - one involving a tax akin to an occupation or privilege tax on a lessee of Indian lands and the other involving a state tax on such a lease. The overruling of the latter cases was unnecessary in a technical sense, for they were not squarely opposed to the Texas Co. case. But they were hostile to its theory and supplied the foundation for the opposing view. So in a practical sense they were derelicts in the stream of the law. They served no purpose except to create illusory islands of tax immunity and hence to cause mischief.

Thus the actual overruling of cases is no true measure of the rate of change in the law. The overruled may come at the end of a cycle of change and not mark its commencement. It is this gradual process of erosion of constitutional doctrine that has the true unsettling effect. It is this which often breeds wasteful uncertainty. As the first landmark falls, the outsider may have few clues as to the importance of the shift. The overruling may and often does presage a sweeping change in constitutional doctrine. Years of litigation may be needed to rid the law of mischievous decisions which should have fallen with the first of the series to be overruled.

That is why it is my belief that it would be wise judicial administration when a landmark decision falls to overrule expressly all the cases in the same genus as the one which is repudiated, even though they are not before the Court. There is candor in that course. Stare decisis then is not used to breed the uncertainty which it is supposed to dispel.

***

The development of exceptions or qualifications to constitutional doctrine can have a profound unsettling effect. An excellent example comes from the period 1860-1890.

The power of the states to fix utility rates was a new issue for the Court at that time. The issue was conceived from the conflict between business interests and Midwestern farmers, who were rapidly being impoverished by low prices, high interest, and high freight rates. They organized the Grange movement, which succeeded in exerting pressure in Midwestern legislatures and obtaining legislation which provided limitations on rates.

It was in this setting that the issue was brought to the Supreme Court in a case involving the power of Illinois to fix the maximum rates for storage of grain in warehouses (Munn v. Illinois, 94 U- S- 1 13). A year passed between argument and the rendering of decision in the case. Two important conclusions were reached in this first important case on the subject of rate-making. (1) The power of a State to regulate industries "affected with a public interest" was upheld and the character of business falling in that category was broadly defined. (2) Recourse for correction of the rates was directed to the legislature and not to the courts. Field, in a vigorous dissent, joined in by Strong, viewed the conclusions of the Court as "subversive of the rights of private property" which the judiciary were duty bound by the Constitution to defend. This dissent backed by the vigor of Field was to have telling effect in succeeding years.

There soon began a process of qualification which narrowed the category of businesses whose prices could be fixed by a State. The most striking restrictions on legislative power to fix prices were reached in the '20's by a closely divided Court. (Tyson & Bro. v. Banton, 273 U- S- 418 Ribnak v. McBride 277 U. S- 350-) Those decisions marked the floodtide of exceptions and qualifications to the principle of Munn v. Illinois.

Beginning last century, Field's dissent as to the power of the courts to review utility rates had a powerful influence. There was at first some yielding to Field's view. Then came a change in personnel of the Court. Field's views became the law. In 1890, the Court ruled that the question of reasonableness of rates was not entirely a legislative matter but was ultimately a judicial question arising under the Due Process Clause. Then in 1898, came Smyth v. Ames, 169 U- S. 466, whose spirit many a judge wished were unblessed. It set constitutional standards for rate-making which haunted utility regulation.

Field's philosophy was that-the "'present assault upon capital is but the beginning'' and only the "stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich; a war constantly growing in intensity and bitterness." That philosophy merged with political power to give direction to the age. The specter of confiscation rode high. Security was thought to be dependent upon keeping capital unfettered.

Today there is greater realization that survival lies in the development of a cooperative society where the security of capital rests on the broad base of the prosperity of the multitude. Today the accepted view is that property need not be made tyrant in order to give men freedom and incentive to acquire it, own it, and manage it and to unleash the great productive power of free enterprise.

Much of the unsettling influence of the Court since 1937 has been in removing from constitutional doctrine excrescences produced early in the century. The tendency has been to return to older views of constitutional interpretation, and to sanction governmental power over social and economic affairs which the Court beginning in the '80's and particularly in the preceding ten to thirty years had denied. Only if this is understood can the work of the period be put into clear historical perspective.

As respects price-fixing the process of restoration of the principle of Munn v. Illinois started almost at once after the flood of exceptions and qualifications had been reached. The ebb was clear and distinct. The tide had started running back to Munn v. Illinois at least by 1934 when Nebbia v. New York, 291 U. S. 502, upheld the power of New York to fix the retail price of milk. Olsen v. Nebraska, 313 U. S. 236, decided April 28, 1941, merely marked the low tide. We returned in less than 70 years substantially to our starting point. Munn v. Illinois regained its lost vitality so far as price-fixing was concerned. Field's fear that "the prices of everything, from a calico gown to a city mansion, maybe the subject of legislative direction" (94 U- S- P. 152) came true.

But that was only one phase of a basic shift in constitutional doctrine which took place during the recent period. Waite in Munn v. Illinois expressed in homely and unsophisticated terms the importance of judicial self-denial in review of social legislation. It was the view so ably espoused in later years by Holmes, Brandeis, Cardozo, and Scone. In Munn v. Illinois, 94 U- S. P 134, Waite said, "For protection against abuses by legislatures the people must resort to the polls, not to the courts."

That principle was largely abandoned in the intervening years. The courts became the place to get relief from the pinch of legislation deemed to be improvident and unwise or hostile to the dominant interests of the day. But in the period from 1937-1949 Waite's view has been in process of restoration. The wisdom of legislation is to be tested by political processes, not by litigation. There are numerous instances during the recent period where that view has been applied. The recent closed-shop decision (Lincoln Union v. Northwestern CO., 335 (J. S. 525) is perhaps the best example. In the whole field of social legislation we have in a sense closed the cycle by returning to the philosophy of Munn v. Illinois and by wiping out the large group of intervening decisions which were hostile to legislative power and jealous of judicial power.

The weakening of Field's influence on judicial review of utility fates has not been as complete. The force of the precedents forged in his era (and later strengthened by Smyth v. Ames, 169 U- S- 466) has been considerably dissipated, though they have not been overruled. Recent cases however, adopted a more pragmatic basis for rate-making, though the full-blown rule of legislative power in rate-making which Munn v. Illinois sponsored was not restored.

***

There are other factors of change and unsettlement in the law which defy statistical treatment. A rule of law correcting a social a evil may be announced. But if it is not applied in the life of the community, there is no change. In spite of a new and unsettling pronouncement the course of the law may go on its way, undisturbed. On the other hand, if the Court as a matter of judicial administration pursues the matter and applies the principle with care and vigor in case after case, the effect of the change may be profound. We can only tell whether the Court is working in that direction by examining the cases which it takes and the manner of its disposition of them.

On what manner of cases does the Court spend its time? How is the discretionary certiorari jurisdiction employed? To what problems is the Court giving emphasis?

A few examples from the current period will illustrate how this matter of emphasis has caused substantial changes in law administration and in statutory interpretation.

There has been increasing scrutiny of charges that confessions in criminal cases were coerced and a growing hostility to traces of third degree methods of the police in criminal prosecutions. There has been an increasing attention to the constitutional requirement of counsel in criminal cases. One product of that scrutiny has been fundamental changes in the practice in some States, notably Missouri and Illinois. There has been increasing attention to Federal Employer Liability Act cases that an indifferent or unfriendly attitude had permeated with a philosophy hostile to that reflected in the legislation.

***

The study of changes in judicial precedents gives, of course, a distorted view. It is like the study of pathological cases in social or medical sciences. The norm is robust and enduring. The case that gets into the books often has an unsettling effect. Yet we are apt to forget that "the fact that a case is in the reports at all is in itself uncertain." The great body of law is unperturbed by events that may rock a nation.

When the changing stream of public law is studied there are three considerations to keep in mind.

First. We have had only one major dispute that struck at the vitals of our federalism. That was the Civil War. Our controversies and quarrels even at the level of constitutional law have been of a lesser kind. They have been disputes calling for adjustment within the framework of our Charter not for repudiation of it. As one of my Brethren recently stated, "they have not involved reconsideration of our basic constitutional tenets which have been accepted since the days of Marshall. They have entailed argument over the application of established doctrine. The problem has been to free the system for growth unhampered by the crippling restraints which men of cramped and narrow vision placed on it. In considering the charges leveled against those of any period who are responsible for giving new or broader interpretations to the Constitution or discarding precedents it is well to remember these words of Thayer,

"And so it happens, as one looks back over our history and the field of political discussions in the past, that he seems to see the whole region strewn with the wrecks of the Constitution, of what people have been imagining and putting forward as the Constitution. That it was unconstitutional to buy Louisiana and Florida; that it was unconstitutional to add new states to the Union from territory not belonging originally to it; that it was unconstitutional to govern the territories at all; that it was unconstitutional to charter a bank, to issue paper money, to make it a legal tender, to enact a protective tariff, -- that these and a hundred other things were a violation of the Constitution has been solemnly and passionately asserted by statesmen and lawyers. Nothing that is now going forward can exceed the vehemence of denunciation, and the pathetic and conscientious resistance of those who lifted up their voices against many of these supposed violations of the Constitution. The trouble has been, then as now, that men imputed to our fundamental law their own too narrow construction of it, their own theory of its purposes and its spirit, and sought thus, when the question was one of mere power, to restrict its great liberty."

Second. It is sometimes thought to be astute political management of a shift in position to proclaim that no change is under way. That is designed as a sedative to instill confidence and allay doubts. It has been a tool of judges as well as other officials. Precedents, though distinguished and qualified out of existence, apparently have been kept alive. The theory is that the outward appearance of stability is what is important.

The idea that any body of law, particularly public law, should appear to stay put and not be in flux is an interesting phenomenon that Frank has explored in Law and the Modern Mind. He points out how it is -in law and in other fields too- that men continue to chant of the immutability of a rule in order to "cover up the transformation, to deny the reality of change, to conceal the truth of adaptation behind a verbal disguise of fixity and universality." But the more blunt, open, and direct course is truer to democratic traditions. It reflects the candor of Cardozo. The principle of full disclosure has as much place in government as it does in the market place. A judiciary that discloses what it is doing and why it does it will breed understanding. And confidence based on understanding is more enduring than confidence based on awe.

Third. From age to age the problem of constitutional adjudication is the same. It is to keep the power of government unrestrained by the social or economic theories that one set of judges may entertain. It is to keep one age unfettered by the fears or limited vision of another. There is in that connection one tenet of faith which has crystallized more and more as a result of our long experience as a nation. It is this: If the social and economic problems of state and nation can be kept under political management of the people, there is likely to be long run stability. It is when a judiciary with life tenure seeks to write its social and economic creed into the Charter that instability is created. For then the nation lacks the adaptability to master the sudden storms of an era. It must be remembered that the process of constitutional amendment is a long and slow one.

That philosophy is reflected in what Thomas Jefferson wrote about the Constitution.

"Some men look at constitutions with sanctimonious reverence, and deem them like the Ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did a to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead."

Jefferson's words are a fortiori germane to the fashioning of constitutional law and to the lesser lawmaking in which the judiciary necessarily indulges.

 

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